ORDER GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY (FRANKS) HEARING

(Doc. No. 78)

DALE A. DROZD, District Judge.

On July 25, 2016, defendant Dimitrios Kastis, proceeding pro se, filed a motion to suppress evidence. (Doc. No. 40.) On September 9, 2016, the government filed an opposition to that motion. (Doc. No. 55.) Thereafter and upon defendant's request, on October 11, 2016, the court appointed attorney Carol Moses to represent defendant Kastis in this action. (Doc. Nos. 67, 70.) On December 15, 2016, counsel on behalf of defendant filed an amended motion to suppress evidence which included a request for an evidentiary hearing. (Doc. No. 78.) On January 20, 2017 the government filed its opposition to the amended motion to suppress. (Doc. No. 80.) A hearing on the amended motion was held on February 13, 2017 at which time Assistant U.S. Attorneys David Gappa and Christopher Baker appeared on behalf of the government and attorney Carol Moses appeared on behalf of defendant. At that hearing the court raised several questions regarding the sufficiency of the search warrant affidavit at issue in these proceedings and granted the parties leave to submit supplemental briefing addressing the court's questions. Those supplemental briefs were submitted on February 21, 2017. (Doc. Nos. 86, 87.)

Having considered all of the briefing submitted by the parties as well as their arguments presented at the hearing, and for the reasons set forth below, the court will grant defendant's request for an evidentiary hearing pursuant to the decision in Franks v. Delaware, 438 U.S. 154 (1978).

Background

This federal prosecution has a lengthy and unusual history. The search warrant in question was sought and obtained by Detective Joe Alvarado of the Clovis Police Department from a judge of the Fresno County Superior Court back on July 5, 2007. (Doc. No. 68, Ex. A; Doc. No. 85-1.) The warrant, which was executed that same day, authorized the search of the apartment of defendant Kastis for the following property:

(Doc. No. 68, Ex. A; Doc. No. 85-1 at 4.)1

Following the execution of the search warrant, defendant Kastis was arrested and apparently charged with violations of the California Penal Code for annoying or molesting a child in the Fresno County Superior Court. According to his present counsel, following the preliminary hearing in that state prosecution defendant Kastis was detained. In the meantime, a criminal complaint was filed in this court on August 4, 2008 charging the defendant with possession and distribution of child pornography in violation of 18 U.S.C. §§ 2252(a)(4) and 2252(a)(2). (Doc. No. 1.) An indictment was returned by the federal grand jury on August 14, 2008, charging defendant with the same offenses alleged in the complaint. (Doc. No. 3.)

In the state court proceedings, defendant moved in October of 2011 to suppress the evidence seized from his apartment on various grounds, including pursuant to the Supreme Court's decision in Franks. (Doc. No. 85, Attach. B.) That motion was eventually denied in March of 2013 without evidentiary hearing following an argument at which the defendant appeared in propria persona. (Doc. No. 85-3.) Apparently, on April 6, 2016, all state charges against the defendant were dismissed and he thereafter made his initial appearance in this court on the indictment, which had been returned August 14, 2008, on April 7, 2016. (Doc. No. 16.)

In his motion to suppress evidence now pending before this court defendant contends that Detective Alvarado's three page affidavit in support of the search warrant for defendant's apartment and the seizure (and presumably search) of all computer systems located therein, intentionally or in reckless disregard for the truth contained numerous false statements and omitted numerous material facts known to the affiant and that correction of these deficiencies would have been fatal to the probable cause determination. The July 5, 2007 search warrant affidavit2 at issue here provided merely the following: (1) Detective Alvarado's education, training, and experience investigating sex crimes (but not mentioning child molestation or child pornography investigations); (2) that on June 9, 2007 a Cpl. Kerr interviewed C/V #1's mother who advised that her nine year old daughter (C/V #1) told her that a neighbor, "Kastas" (sic) (hereinafter "defendant"), had cornered her in the doorway of his apartment and kissed her on the mouth five times, had taken "pictures" of eleven year old neighbor, C/V #2, while she was wearing a bathing suit and that "this" picture was on his computer as a screen saver; (3) Cpl. Kerr then interviewed C/V #1 who said that the incident, presumably the kissing incident, took place sometime in January of 2007, that she and C/V #2 and the latter's younger sister were playing soccer in front of defendant's apartment when he invited them in for candy, that C/V #2 and her sister left the apartment but defendant blocked C/V #1 from doing so and kissed her on the mouth five times, stopping after each kiss and looking around, and that she was able to run out of the apartment when she heard her sister call, sometime after this incident the three girls played soccer with defendant again and C/V #1 saw him grab C/V #2's butt on purpose; (4) on June 20, 2016 Detective Alvarado had Shelly Ramirez of the Multi-disciplinary Interview Center interview C/V #2 who said that defendant played soccer with her and other girls living in his apartment complex, defendant "always" intentionally touched her butt over her swim suit when they went swimming at the complex pool, defendant has taken "several photos" of her in her bathing suit with his camera and that once when her mother went to visit defendant in his apartment C/V #2 saw him change the computer screen so that her mother would not see the photo, six months previous C/V #2 had been playing soccer with defendant when he commented that she was "hot" (which she took as a comment on her looks) and invited her into his apartment for some Gatorade at which time he came up behind her and placed his hands on her chest over her clothing, C/V #2 also said that C/V #1 had told her about the kissing incident; and (5) C/V #1 identified the defendant from a photo lineup. (Doc. No. 85-1 at 8-9.)

However, defendant contends as follows.

(Doc. No. 78 at 4-8.)

In opposition, defendant argues that any inaccurate statements or omissions were unintentional on Detective Alvarado's part or, in any event, were not material to the probable cause determination. (Doc. No. 80.)

Analysis

"A defendant is entitled to an evidentiary hearing if he `makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.'" United States v. Craighead, 539 F.3d 1073, 1080-81 (9th Cir. 2008) (quoting Franks, 438 U.S. at 155-56); see also United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011); United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000); United States v. Johns, 851 F.2d 1131, 1133 (9th Cir. 1988). Therefore, in order to be entitled to an evidentiary hearing, a defendant must come forward with specific allegations, allege a deliberate falsehood or reckless disregard for the truth, and support that claim with a sufficient offer of proof. Craighead, 539 F.3d at 1080 (citing United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983)). Where a substantial preliminary showing is made, "the court must hold a hearing to determine if any false statements deliberately or recklessly included in the affidavit were material to the magistrate's finding of probable cause."3 Johns, 851 F.2d at 1133 (quoting United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987)); see also United States v. Stanert, 762 F.2d 775, 780, as modified, 769 F.2d 1410 (9th Cir. 1985).

Here, the court concludes that a substantial preliminary showing has been made by the defendant. This is particularly true given the questionable showing of probable cause made within the four corners of the three page search warrant affidavit and the breadth of the warrant that may have been issued based upon that showing.4 As required by Franks, defendant has alleged that the statements of C/V #1, C/V #1's mother and C/V #2 were not accurately reported in Detective Alvarado's affidavit. Defendant bolsters this contention with copies of the reports of those interviews as well as transcripts of some of them reflecting both the inaccurate statements in the search warrant affidavit as well as the fact that it appears Detective Alvarado was aware of what the witnesses actually said. A similar showing has been made with the various omissions alleged by defendant. That showing is "substantial" in that if the alleged inaccurate statements are corrected and the alleged omitted facts added to the search warrant affidavit, a significant doubt would be cast on the existence of probable cause justifying the issuance of this warrant. This is especially true in light of the weak nexus between the probable cause showing, the location to be searched, and the items apparently to be seized pursuant to the warrant as originally presented.

Conclusion

For the reasons set forth above, defendant's request for an evidentiary hearing (Doc. No. 78) is hereby granted. The parties are directed to consult with the anticipated witnesses to be called to testify at that evidentiary hearing, determine their availability and then jointly confer with the undersigned's courtroom deputy to set an appropriate date and time for the hearing which will then be confirmed by minute order.

IT IS SO ORDERED.