United States v. Adams

1

UNITED STATES OF AMERICA v. ANDRE ADAMS, JR.

No. 8:23-cr-12-VMC-MRM

United States District Court, M.D. Florida, Tampa Division

June 29, 2023

REPORT AND RECOMMENDATION

Mac R McCoy, United States Magistrate Judge

Pending before the Court is Defendant's Motion to Suppress, filed on March 9, 2023. (Doc. 20). Defendant Andre Adams, Jr., is charged by indictment with one count of possession with intent to distribute a controlled substance (21 U.S.C §§ 841(a)(1); 841(b)(1)(B)) (Count One); one count of possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)) (Count Two); and one count of possession of a firearm and ammunition by a person previously convicted of a felony (18 U.S.C §§ 922(g)(1) and 924(a)(8)) (Count Three). (Doc. 1 at 1-3).^[1] In the motion sub judice, Defendant seeks to suppress all evidence seized during the execution of two specified search warrants. (Doc. 20 at 1).

The Government filed a response in opposition on March 23, 2023. (Doc. 25). The Undersigned held an evidentiary hearing on June 8, 2023. (Docs. 35, 40, 48).^[2] For the reasons set forth below, the Undersigned found that Defendant had failed to make the substantial preliminary showing that he was entitled to a hearing on whether a so-called Franks violation occurred and, therefore, limited the issues at the hearing to whether the warrants were supported by probable cause. (See Docs. 26, 29, 35). As a result, the parties were not permitted to present any argument or evidence related to Defendant's position that a so-called Franks violation occurred. (Id.). This matter is ripe for review.

For the reasons explained below, the Undersigned recommends that Defendant's Motion to Suppress (Doc. 26) be DENIED.

I. Factual and Procedural Background

As noted above, Defendant Andre Adams, Jr., is charged by indictment with one count of possession with intent to distribute a controlled substance (21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)) (Count One); one count of possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)) (Count Two); and one count of possession of a firearm and ammunition by a person previously convicted of a felony (18 U.S.C. §§ 922(g)(1) and 924(a)(8)) (Count Three). (Doc. 1 at 1-3).

Detective Greg Dunlap began investigating Defendant after receiving a tip that someone named “Dre” was selling cocaine and fentanyl out of an East Bradenton residence. (Doc. 25 at 1; Tr. at 6, 7-8). During the investigation - and relevant to the motion sub judice - the Government sought and obtained two search warrants, one permitting the search of a residence at 303 22nd Street East Bradenton, Florida (“the Residence Warrant” (Doc. 25-1 at 9-10)) and the other permitting the search of a specific storage unit (“the Storage Unit Warrant” (Doc. 25-1 at 16-17)).^[3]The applications for the Residence Warrant and the Storage Unit Warrant were each supported by separate affidavits from Detective Dunlap (“the Residence Affidavit” (Doc. 25-1 at 1-8) and “the Storage Unit Affidavit” (Doc. 25-1 at 12-15)). The Residence Warrant was executed on August 4, 2022, (Doc. 20 at 6; Tr. at 36), and the Storage Unit Warrant - the application for which relied in part on the results of the search of the residence - was executed later the same day, (Doc. 20 at 6-7).

Defendant was indicted on January 10, 2023. (Doc. 1). Defendant filed the motion sub judice on March 9, 2023, arguing that the evidence recovered from the search of the residence must be suppressed because: (1) Detective Dunlap's affidavit did not establish probable cause that the property sought would be within the confines of the place to be search at the time the warrant was issued; (2) the scope of the warrant was overly broad, failing to properly specify the places to be searched and the things to be seized; and (3) the Residence Affidavit included material misrepresentations and omissions in violation of Franks v. Delaware, 438 U.S. 154, 171-72 (1978). (Doc. 20 at 10-17).

Defendant also contends that suppression of evidence obtained from the search of the storage unit is warranted because: (1) evidence obtained from a prior illegal search (i.e., the search of the residence) cannot be used to establish probable cause for a new warrant; (2) the search warrant application contains opinions, beliefs, and possibilities in addition to facts; and (3) the Storage Unit Warrant lacks particularity. (Id. at 18-20).

The Undersigned considers each argument in turn below, beginning with Defendant's contention that the Residence Affidavit included material misrepresentations and omissions. In doing so, the Undersigned first considers whether Defendant was entitled to a hearing on his Franks contention. Because the Undersigned answers the question in the negative, no such hearing was held.

II. The Residence Warrant

A. Whether the Residence Affidavit Included a Franks Violation

i. Parties' Arguments

Defendant argues that he is entitled to a Franks hearing, at which he would prove a Franks violation occurred because the Residence Affidavit included material misrepresentations and omissions. (Doc. 20 at 14-17). In support, Defendant asserts two grounds: (1) that the trash pull described in the affidavit occurred on June 9, 2022, as opposed to June 13, 2022-the date cited in the affidavit-and (2) that the affidavit did not mention that the three bags containing white substance-one of which tested positive for fentanyl-were found inside a pill bottle with a name of someone other than Defendant. (Id. at 14-15). Based on these alleged misrepresentations and omissions, Defendant maintains that the Government cannot rely on the good-faith exception to the warrant requirement, which warrant Defendant argues is otherwise unsupported by probable cause. (See id.).

In response, the Government argues that Defendant cannot meet his burden to show that a Franks hearing is warranted. (Doc. 25 at 9-11). First, the Government asserts that the mistake in the date of the trash pull is not material, given that (1) Detective Dunlap conducted surveillance on both June 9, 2022, and June 13, 2022, as well as the days preceding and following these dates and (2) Defendant admits in his motion that the scrivener's error is “not absolutely material.” (Id. at 9-10). Second, the Government contends that the inclusion of the name on the pill bottle would not eliminate probable cause. (Id. at 10-11). The Government also asserts that given Detective Dunlap's reference to other persons he suspected of committing crimes in or at the residence, Defendant cannot show that Detective Dunlap intentionally or recklessly omitted information about the pill bottle. (Id.). As a result, the Government argues that, in the event the warrant was not supported by probable cause, suppression is not required under the good-faith exception to the warrant requirement. (Id. at 11-13).

ii. Legal Standards

Under the Fourth Amendment, a search warrant must be supported by an affidavit containing information that “is believed or appropriately accepted by the affiant as true.” Franks v. Delaware, 438 U.S. 154, 165 (1978). Search warrants and their affidavits are entitled to a presumption of validity. United States v. Lebowitz, 676 F.3d 1000, 1010 (11th Cir. 2012). Yet, “[u]nder Franks, a defendant may challenge the veracity of an affidavit in support of a search warrant if he makes a ‘substantial preliminary showing' that (1) the affiant deliberately or recklessly included false statements, or failed to include material information, in the affidavit; and (2) the challenged statement or omission was essential to the finding of probable cause.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006) (citing Franks, 438 U.S. at 155-56); United States v. Valencia-Trujillo, 573 F.3d 1171, 1182 (11th Cir. 2009) (quoting Franks, 438 U.S. at 155-56). A defendant who satisfies both prongs is entitled to an evidentiary hearing on the issue. Arbolaez, 450 F.3d at 1293.

While the Eleventh Circuit has not specified the standard of proof under which a defendant must make the “preliminary showing” to be entitled to an evidentiary hearing, at least one jurist within the Eleventh Circuit has found it to be less than a preponderance of the evidence. See United States v. Ohoro, 724 F.Supp.2d 1191, 1201 (M.D. Ala. 2010). In any event, the standard is not lightly met. See United States v. Kearse, No. 2:14-cr-125-FtM-38CM, 2015 WL 2199341, at *8 (M.D. Fla. May 10, 2015). As the Eleventh Circuit has explained:

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.

Arbolaez, 450 F.3d at 1294 (quoting Williams v. Brown, 609 F.2d 216, 219 (5th Cir. 1979)). This inquiry focuses on the affiant's credibility in the context of the affidavit. United States v. Burston, 159 F.3d 1328, 1334-35 (11th Cir. 1998).

Even if the defendant shows that the affiant intentionally or recklessly included false statements or omitted information the inquiry does not end. Rather, the warrant will only be found invalid based on the reckless or intentional inclusion of untrue information if “the untrue information was an essential element of the probable cause showing relied upon by the...