United States v. Taylor

UNITED STATES OF AMERICA, Plaintiff, v. ANGELO TAYLOR, Defendant.

Case No. 2:18-cr-00321-JAD-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

July 25, 2019

ORDER AND REPORT AND RECOMMENDATION

(Docket No. 38)

This matter was referred to the undersigned Magistrate Judge on Defendant Angelo Taylor's motion to suppress evidence. Docket No. 38. The Court has considered Defendant's motion, Defendant's separately filed exhibit, the United States' response and exhibits, Defendant's reply, Defendant's supplemental brief, and the United States' supplemental brief. Docket Nos. 38, 39, 43, 45, 52, 53.

I. BACKGROUND

On June 30, 2018, Nevada State Judge Eric Goodman issued a telephonic search warrant permitting police to search Defendant's residence for firearms and related evidence based on facts provided telephonically by Las Vegas Metropolitan Police Department ("LVMPD") Officer Aaron Jenkins in an oral affidavit. Docket No 38 at 2-3. Officer Jenkins attested that he was investigating Defendant for the crime of felon in possession of a firearm and asserted that the following facts established probable cause for the issuance of a search warrant: Dorothea Hill, Defendant's mother-in-law, reported to police that, on June 30, 2018, Defendant threatened to "shoot it out" with police if they were called; Defendant said he would kill his family and himself via "suicide by cop;" and Defendant was sitting inside his residence monitoring his surveillance cameras. Docket No. 38-1 at 5.¹ Further, Defendant's wife, Deriyonne Taylor, reported to police that Defendant pointed a gun at her head in April 2018; Defendant's son, K.E. [sic], told police that he saw Defendant with a black Taurus 9mm gun "a week ago," that Defendant keeps the gun in a dresser in his closet, and that Defendant carries the gun in his waistband when he leaves the house; Defendant's daughter, D.S., reported to police that Defendant had pointed a gun at her mother two months earlier and threatened to kill her if she left him, and that she saw the handle of a gun in Defendant's waistband on June 30, 2018. Id. at 5-6. Further, the affidavit states that Defendant was convicted of two felonies in 2009 in Kansas City, Missouri. Id. at 6.

After hearing Officer Jenkins' recitation of the facts, Judge Goodman found that probable cause existed and issued the search warrant with a nighttime clause. Id. During the execution of the search warrant, law enforcement officers recovered a Taurus 9mm handgun and 9mm ammunition from Defendant's residence. Docket No. 38 at 3.

On October 10, 2018, a federal grand jury sitting in Las Vegas, Nevada issued an indictment charging Defendant with one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Docket No. 1. On March 29, 2019, Defendant filed a motion to dismiss the indictment because the Missouri offenses could not serve as predicate offenses. See Docket No. 26.

Defendant's National Crime Information Center ("NCIC") report on which Officer Jenkins and the government relied lists two felonies in Kansas City, Missouri, each with a disposition of "GUILTY - SIS." Docket 38-4 at 5-6. Under Missouri law, "SIS" is a designation for "suspended imposition of sentence," and a criminal conviction is not recorded if an offender on an SIS successfully completes probation. Docket No. 38 at 8. Defendant successfully completed probation for the felonies listed on his rap sheet. Id. Nevada does not have a comparable disposition for cases. Id. at 7. Officer Jenkins' affidavit did not mention "SIS." See Docket 38-1.

On April 10, 2019, the federal grand jury issued a superseding indictment charging Defendant with Prohibited Person in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). Docket No. 27. Defendant submits that the superseding indictment was sought in response to his argument that he is not a felon under the applicable statute. Docket No. 38 at 3. Defendant, citing Franks v. Delaware, now asks for a Franks hearing and the suppression of the evidence recovered as a result of the execution of the search warrant at his residence. Id. at 1, 11.

II. LEGAL STANDARDS

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court addressed at length whether a false statement by a government affiant invalidates a search warrant. United States v. Hammett, 236 F.3d 1054, 1058 (9th Cir. 2001) (citation omitted). The Court held that, under certain circumstances, a defendant is entitled to an evidentiary hearing to afford the defendant an opportunity to attack the veracity of a facially-valid affidavit used to support a search warrant. A defendant can challenge a facially valid affidavit by making a substantial preliminary showing that "(1) the affidavit contains intentionally or recklessly false statements or misleading omissions, and (2) the affidavit cannot support a finding of probable cause without the allegedly falseinformation." United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000) (citing United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985)).

Before a criminal defendant is entitled to go beneath the search warrant to obtain additional information concerning the police investigation and an informant, he or she is required to make a substantial threshold showing. A defendant's preliminary showing cannot be "merely conclusory." Reeves, 210 F.3d at 1044. "There must be allegations of deliberate falsehood or reckless disregard for the truth, and these allegations must be accompanied by an offer of proof." Hammett, 236 F.3d at 1058 (quoting Franks, 438 U.S. at 171). "To justify a hearing, a defendant must make specific allegations, allege a deliberate falsehood or reckless disregard for the truth, and accompany such a claim with a detailed offer of proof." United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir. 2008) (citation omitted). The movant bears the burden of proof and must make a substantial showing to support both elements. See United States v. Garcia-Cruz, 978 F.2d 537, 540 (9th Cir.1992).

Intentional or reckless omissions may provide grounds for a Franks hearing. United States v. Jawara, 474 F.3d 565 (9th Cir. 2007)); see also United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985) ("By reporting less than the total story, an affiant can manipulate the inferences a magistrate [judge] will draw. To allow a magistrate [judge] to be misled in such a manner could denude the probable cause requirement of all real meaning"). Although "[c]lear proof of deliberate or reckless omission is not required," a "[d]efendant 'must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reason for omitting facts in order to prove a deliberate falsehood or reckless disregard." United States v. Souffront, 338 F.3d 809, 822-23 (7th Cir. 2003). A defendant must also show that the "affidavit, once corrected and supplemented," would not "provide ... a substantial basis for concluding that probable causeexisted." Stanert, 762 F.2d at 782. "[T]he omission rule does not require an affiant to provide general information about every possible theory, no matter how unlikely, that would controvert the affiant's good-faith belief that probable cause existed for the search." Craighead 539 F.3d at 1081.

III. ANALYSIS

Defendant submits that he is entitled to a Franks hearing because the affiant's testimony, cured of recklessly false statements and misleading omissions, cannot support a finding of probable cause that Defendant was a felon in possession of a firearm. Docket No. 38 at 10-11. Specifically, Defendant submits that the affiant made two false statements: (1) Defendant had been convicted of two felonies; and (2) Defendant's child saw Defendant with a gun on June 30, 2018. Id. at 9. Further, Defendant submits that the affiant's failure to include the "SIS" designation in his testimony constitutes a misleading omission. Id. at 8. Moreover, Defendant submits that, if Judge Goodman had known that the imposition of sentencing for Defendant's Missouri offenses had been suspended and that the Defendant's child did not report seeing Defendant with a firearm on June 30, 2018, then he would not have found probable cause to issue the search warrant for evidence of the crime of felon in possession of a firearm. Id. at 10. The United States, in response, submits that the affiant's testimony does not contain any erroneous statements or misleading omissions, and, in the alternative, any erroneous statements or omissions are not material. Docket No. 43 at 7-8; Docket No. 53 at 4.

A. Veracity of Officer Jenkins' Statements

As a threshold matter, Defendant's motion is premised on the idea that Officer Jenkins' testimony contained at least one false statement. The Court first analyzes the affiant's statement regarding Defendant's Missouri offenses.

The Court finds that Defendant's Missouri offenses could not constitute predicate offenses under federal gun control statutes. See, e.g., United States v. Solomon, 826 F. Supp. 1221 (E.D. Mo. 1993) (holding that, under federal gun control statutes, conviction of a predicate offense is defined by the law of the jurisdiction in which the underlying proceedings were held); Yale v. City of Independence, 846 S.W.2d 193 (Mo. 1993) (holding that under Missouri law, suspended imposition of sentence does not constitute a conviction). However, the Court finds that Defendant's Missouri offenses could constitute predicate offenses under state gun control statutes. See, e.g., State v. Pollard, 44 P.3d 1261 (Kan. 2002) (holding that Kansas law—not the law of the jurisdiction in which the underlying proceedings were held—defines "prior conviction" for purpose of Kansas gun control laws); State v. Howard, 339 P.3d 809 (Kan. Ct. App. 2014) (holding that a guilty plea for a predicate offense—regardless of whether imposition of sentencing is suspended—constitutes a prior conviction for purposes of Kansas gun...