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United States v. Thrasher

United States District Court, D. Oregon

July 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RONALD WAYNE THRASHER, Defendant.

          ORDER

          Michael McShane, United State District Judge.

         Defendant Ronald Wayne Thrasher is charged with Felon in Possession of a Firearm, Possession of a Stolen Firearm and Ammunition, Conspiracy to Possess with Intent to Distribute Methamphetamine, Possession with Intent to Distribute 50 or more grams of Methamphetamine, and Possession of a Firearm in furtherance of a Drug Trafficking Crime. On May 19, 2017, members of the Central Oregon Drug Enforcement (CODE) team executed a search warrant at Thrasher's residence located at 8109 Northwest Deschutes Avenue in Madras, Oregon. Officers executed the warrant after CODE team members Jason Wall, Richard Bigelow, and Josh Spano were involved in a controlled buy leading to an informant's arrest earlier that day. The informant identified Thrasher as her supplier and told the officers that she had purchased methamphetamine from Thrasher the previous day. The informant also indicated that Thrasher had transported large amounts of methamphetamine from California back to Central Oregon. She told officers she saw what she believed to be 15 pounds of methamphetamine in zip lock bags inside a black bag that Thrasher retrieved from under his bed. The informant then showed the detectives where she believed Thrasher lived, 8109 Northwest Deschutes Drive in Madras, Oregon.

         Relying on this information, the detectives asked the informant to call Thrasher to arrange a purchase of methamphetamine. The informant agreed. The informant told the detectives that whenever she speaks with Thrasher over the phone, they use “code” language, and never explicitly speak of controlled substances, prices, or amounts during their conversations. Under the detectives' supervision, the informant contacted Thrasher and asked if she could “meet him” or if she could “come see him”. Thrasher stated he was driving from Prineville back to Madras, but could meet the informant at his residence.

         Based on all of this, Detective Bigelow started the process of obtaining a search warrant. Thrasher was stopped that afternoon by state police before he arrived back at his residence. Once Thrasher was in custody, Detectives Wall, Spano, and other officers went to Thrasher's residence. Upon arrival, they contacted Robert Greene, who also resided at 8109 Deschutes Drive. Greene informed the officers that Thrasher rented one room in the house and allowed the officers to gain entry and search the common areas of the residence. Later that evening, officers executed the search warrant. Officers smelled a chemical indicative of methamphetamine emanating from the hall closet. The officers opened the closet and saw a black bag containing 15 pounds of methamphetamine. The officers also discovered a package containing $16, 965 worth of cash. Officers seized a smaller quantity of a controlled substance and a firearm found inside Thrasher's bedroom.

         Pursuant to the search warrant, officers were also authorized to conduct a search of “all vehicles registered to or under the direct control of the occupants frequenting the premises to be searched at the time of warrant service.” During the search of a Pontiac owned by Thrasher, officers found a canister of methamphetamine attached with a magnet to the car's undercarriage.

         Thrasher moves for a Franks hearing, arguing that affiant Bigelow recklessly and intentionally made false statements and material omissions in his probable cause affidavit. Thrasher argues the affidavit does not support a finding of probable cause without this alleged false information and he is therefore entitled to a Franks hearing to cross examine the officers.

         STANDARDS

         The Supreme Court outlined the standards a defendant faces when moving for a Franks hearing:

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. 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 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 affidavit to support a finding of probable cause, no hearing is required.

Franks v. Delaware, 438 U.S. 152, 170 (1978).

         DISCUSSION

         “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 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. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . conclud[ing]' that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983) alterations in original) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). Thrasher argues that upon removing the affidavit's false statements, and including material omissions Officer Bigelow withheld from the magistrate, the affidavit does not provide probable cause that methamphetamine would be found in Thrasher's residence or vehicle. In reviewing the affiant's statements and omissions, courts are not to “flyspeck” the affidavit. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006). After all, officers drafting affidavits to present to a magistrate are usually not attorneys, and prepare the affidavit “in the midst and haste of a criminal investigation.” Gates, 462 U.S. at 235. Therefore, courts reviewing an affidavit in the context of a Franks motion must use a commonsense manner rather than a “hypertechnical” review. Id. at 236. So long as the magistrate had a “substantial basis” for concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Id.

         Thrasher points to numerous alleged omissions and false statements from Officer Bigelow's affidavit. Below is the affidavit, with Thrasher's allegations included in bold brackets:

Summary of Affidavit:
This affidavit establishes probable cause to believe and I do believe that Ronald Wayne Thrasher DOB 08/28/1969 has committed the crimes of Unlawful Delivery of Methamphetamine and Unlawful Possession of Methamphetamine and Frequenting a Place where Controlled Substances are Used and that evidence of these crimes will be located within:
The residence located at 8109 N.W. Deschutes Drive within the unincorporated area of Madras, Jefferson County, Oregon. The residence is further described as being a single story manufactured home. The primary color is white with light blue in color trim. The front door is white and faces to the south. The numbers 8109 are posted in white on a green sign that is posted directly to the west of the residence driveway at Deschutes Drive.
Any person frequenting the listed address at the time of warrant service.
All vehicles registered to or under the direct control of Ronald Wayne ...

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