SUSAN ILLSTON, District Judge.
On November 1, 2018, the Court held a hearing on defendant Dennis Perry, Jr.'s motion to suppress evidence. On November 15 and 16, 2018, the Court held evidentiary hearings and heard testimony from witnesses and received evidence. After careful consideration of the parties' arguments and the record in this case, the Court hereby DENIES defendant's motion to suppress.
On July 31, 2018, the government filed an indictment charging defendant Dennis Perry, Jr. with one count of violating 18 U.S.C. § 922(g)(1), Felon in Possession of Firearm and Ammunition. The indictment alleges, "[o]n or about May 20, 2018, in the Northern District of California, the defendant, Dennis Perry, Jr., having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, did knowingly possess a firearm and ammunition[.]" Indictment at 3. Specifically, defendant allegedly possessed "one (1) Springfield, Model XD9, 9mm caliber handgun . . ., twenty-one (21) rounds of Jag, 9mm Luger ammunition, and one (1) round of Prime, 9mm Luger ammunition all in and affecting interstate and foreign commerce[.]" Id.
The indictment flows from the warrantless search and seizure of defendant and his vehicle on May 20, 2018, and the subsequent search of his storage locker and his vehicle pursuant to a warrant based on information obtained from the warrantless searches and seizures. As discussed in greater detail below, on May 20, 2018, San Mateo County Sheriff's officers conducted a traffic stop of defendant for alleged traffic violations, and during the stop the officers investigated defendant and his passenger in connection with a burglary of a storage locker at Public Storage, 145 Shoreway Road, San Carlos, California. The officers conducted a warrantless search of defendant and his vehicle, arrested defendant and his passenger, Patrick Jinzo, and then obtained a search warrant for a further search of defendant's vehicle and storage locker.
On October 18, 2018, defendant filed a motion to suppress "all fruits of (1) the warrantless seizure of his person; (2) the warrantless search of his person; (3) the warrantless search of his car; and (4) the search of his storage locker and car based on a tainted warrant." Dkt. No. 19 at 1. Defendant moved to suppress a Sentry safe, a lower receiver for Springfield subcompact XD firearm, an upper receiver for a Springfield subcompact XD firearm, two loaded ten-round magazines, and all ammunition. Id. at 1-2. In the alternative, defendant requested an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), based upon defendant's contention that San Mateo County Sheriff Deputy Andrew Constantino's search warrant affidavit intentionally contained materially false statements and omissions. In support of the motion, defendant filed the following: (1) a San Mateo County Search Warrant Affidavit, prepared by Deputy Constantino; (2) a copy of a video identified by the government as Deputy Constantino's "Dash Cam" from May 20, 2018; (3) a San Mateo County Sheriff's Office Felony Report regarding defendant's arrest on May 20, 2018, prepared by Deputy Constantino; and (4) a copy of a video identified by the government as San Mateo County Sheriff Deputy Duvall's "Dash Cam." Dkt. No. 20.
In opposition to the motion, the government filed: (1) a declaration dated October 24, 2018 from Deputy Constantino; (2) a copy of Deputy Constantino's "Dash Cam" and microphone audio from May 20, 2018; (3) a copy of the state search warrant signed on May 22, 2018; and (4) a copy of the San Mateo County Sheriff's Office vehicle tow policy. Dkt. Nos. 24-27.
In an order filed October 30, 2018, the Court directed the government to file a supplemental brief and/or declaration elaborating on statements made in Deputy Constantino's October 24, 2018 declaration regarding what information he knew about defendant being a suspect in storage locker burglaries prior to the May 20, 2018 traffic stop. Dkt. No. 29. On October 31, 2018, the government filed a supplemental declaration from Deputy Constantino. Dkt. No. 30.
On November 1, 2018, the Court held a hearing on defendant's motion to suppress and request for an evidentiary hearing. After the hearing, the Court issued an order granting defendant's request for an evidentiary hearing. Dkt. No. 32. The Court found that the record was ambiguous as to when Deputy Constantino learned defendant was a suspect in other storage locker burglaries, and that defendant had made a sufficient showing that Officer Constantino had made incomplete and/or misleading statements in his search warrant affidavit.
On November 15, 2018, the Court held an evidentiary hearing during which Deputy Constantino testified and the Court admitted a number of exhibits, including: (1) a certified copy of a "RIMS"
After the hearing, the government filed a request for a supplemental hearing to present additional testimony and evidence regarding what Officer Constantino knew about defendant prior to conducting the traffic stop. Dkt. No. 37. The Court granted the request, and on November 16, 2018, held a further evidentiary hearing. On November 16, 2018, the Court heard testimony from San Mateo County Deputy Sheriff Jerri Cosens and San Mateo County Sheriff's Records Supervisor Jennifer Prado. The Court also admitted into evidence one exhibit, the "RIMS" audit for San Mateo County criminal case 18-01489 (the February 2018 burglary at Public Storage located at 333 O'Neill Ave., Belmont, California).
At approximately 10:00 a.m. on May 20, 2018, San Mateo County Sheriff's Deputy Andrew Constantino was dispatched to the Public Storage facility at 145 Shoreway Road, San Carlos, California, to investigate a report of a burglary of one of the storage lockers. Leonida Decl. Ex. C at DP-0026 (Dkt. No. 20-3). Upon arrival, Deputy Constantino contacted the manager of the facility, Victoria Domingo, and she directed Constantino to locker number #A007. Id. Deputy Constantino examined the storage locker door and saw that the key lock had been drilled through, and that the back side of the door had a drill hole indicating that the door had been completely drilled through. Id.
Deputy Constantino interviewed the victim, Chad Edwards, who told Constantino that approximately $6,500 worth of tools had been stolen from his storage unit. Id. at DP-0030; Hong Decl. Ex. C at DP-0522.
Constantino Decl. ¶¶ 2-6 (Dkt. No. 24-1). According to the police report, Domingo "provided [Officer Constantino] with a printout of the subjects who had entered and exited the storage facility in the past 24 hours." Leonida Decl. Ex. C at DP-0026 (Dkt. No. 20-3). The record does not state how many other people had entered and exited the storage facility in the 24 hours prior to the discovery of the burglary.
What happened next is disputed by the parties and was the focus of supplemental briefing and the evidentiary hearings. According to Deputy Constantino's October 24, 2018 declaration, "After talking to Domingo and Edwards, I looked up Perry on our internal database and learned he was a named suspect in several burglaries, including a city of Belmont storage unit burglary and a San Mateo county storage unit burglary." Constantino Decl. at ¶ 7. In response to an order from the Court directing the government to provide additional information regarding this statement, Constantino filed a supplemental declaration which states,
Supp. Constantino Decl. ¶¶ 1-4 (Dkt No. 30-1).
At the December 15, 2018, evidentiary hearing, Deputy Constantino testified that after interviewing Edwards and Domingo he went to the San Carlos Substation where he looked up Perry's name on RIMS. Constantino Tr. at 6:18-7:9 (Dkt. No. 41); see also Gov't Ex. 3 at p.2 (RIMS Audit for Perry showing Constantino viewed Perry's page at 11:09 a.m. and 11:14 a.m. on May 20, 2018). Deputy Constantino testified that from the RIMS search he learned that Perry had been named as a suspect in auto burglaries and commercial burglaries, such as storage units. Id. at 7:19-20. On cross-examination, Officer Constantino stated that he learned Perry was a suspect in a Belmont storage unit burglary at 333 O'Neil Avenue in Belmont, California, by looking at the police report for that burglary, which was linked to Perry's profile page on RIMS. Id. at 19:19-20:21.
The police report for the storage unit burglary at 333 O'Neil Avenue in Belmont (Case No. 18-01489) was entered into evidence as Defense Exhibit F. Officer Constantino was questioned on cross-examination about that police report, and he admitted that Perry's name does not appear anywhere in that report until "Supplement 2" under a heading titled "Continued Investigation." Id. at 21:5-23:12. Under "Continued Investigation," Exhibit F states,
Ex. F at DEF-000047. In other words, the police report for Case No. 18-01489 did not identify Perry as a suspect in that burglary until after Perry was arrested as a suspect in the Public Storage burglary at 145 Shoreway Road, San Carlos.
Nevertheless, Officer Constantino testified that when he looked up Perry's name in RIMS, he saw that Perry was listed as a suspect for Case No. 18-01489. After the close of the November 15, 2018 hearing, the government requested to reopen proceedings to put on evidence showing how Officer Constantino could have seen that Perry was listed as a suspect in Case No. 18-01489 when he searched Perry's name on RIMS on May 20, 2018. The Court granted that request and held a second evidentiary hearing on November 16, 2018.
At the November 16, 2018 hearing, San Mateo County Sheriff's Deputy Jerri Cosens testified. Officer Cosens is the individual who prepared Supplement 2 for Case No. 18-01489. Officer Cosens testified that she was one of the officers investigating the burglary of the storage unit at 333 O'Neil Avenue in Belmont, and that in March 2018 Perry became a suspect in that burglary. Cosens Tr. at 56:16-57:12 (Dkt. No. 42). Officer Cosens testified that she did not prepare a Supplement in March 2018 stating that Perry was a suspect or explaining why he was a suspect, but that she created an association between Perry and Case No. 18-01489 in which he was identified as a suspect. Id. at 57:13-58:21. The RIMS Audit for Perry shows that on March 7, 2018, Perry was "Added to case 18-01489 as a S" by "J. Cosens." Gov't Ex. 3 at p. 2. Similarly, the RIMS Audit for San Mateo County Case No. 18-01489 shows that Perry was added as a suspect to that case on March 7, 2018. Gov't Ex. 6 at p. 11.
Although Deputy Constantino's October 24 and 31 declarations state that he learned from the May 20, 2018 RIMS search that Perry was also a suspect in a "San Mateo County" storage locker burglary, the government did not present any evidence showing that Deputy Constantino's May 20, 2018 RIMS search revealed such information. Deputy Constantino was cross-examined about San Mateo County Case No. 18-02126, which involved a March 2018 burglary at Bay Area Self Storage, 100 Industrial Rd., Belmont, California. The police report for that case was admitted into evidence as Defense Exhibit G. The police report does not identify Perry as a suspect until "Supplement 3," which discusses Perry's May 20, 2018 arrest in this case. Def. Ex. G at DEF-000095. The RIMS audit for Perry shows that he was added as a suspect in Case No. 18-02126 on June 26, 2018, by Officer Jerri Cosens. Gov't Ex. 3 at p. 6. Thus, there is no evidence showing that Deputy Constantino saw that Perry was listed as a suspect in Case No. 18-02126 when he looked up Perry's name on RIMS on May 20, 2018.
At approximately 11:33 a.m., County Communications contacted Deputy Constantino and told him that Perry had returned to the Public Storage facility at 145 Shoreway Road. Leonida Decl, Ex. C at DP-0027. The police report written by Deputy Constantino states,
Id.
After Deputy Constantino pulled Perry's car over, Constantino exited his car and conducted a driver side approach. Id. He saw that Perry had rolled down the windows to the vehicle. Id. In the back seat of Perry's car, Deputy Constantino saw plastic construction dollies, boxes, tools and "miscellaneous items." Id. Constantino also saw several screwdrivers and hand tools on the driver's floorboard. Id. Deputy Constantino spoke with Perry and informed him that the vehicle's tinted windows and paper license plates were Vehicle Code violations. Id. Perry told Constantino that he had previously been issued a citation for not having license plates on his vehicle, and he showed Constantino the citation. Id.
Perry gave Constantino his identification, and Perry's passenger, Patrick Jinzo, gave his identification to Deputy Duvall. Id. Constantino then returned to his patrol car and radioed dispatch for verification of the IDs and background checks. Hong Decl., Ex. B at 3:51 (Constantino's Dashboard Camera Video). While waiting for this information, Constantino stated, "I want to pull him out after the return and search him." Id. at 5:33. Dispatch confirmed that defendant had a valid driver's license, was not on parole or probation, and previously had been arrested for Cal. Penal Code section 496(a) (possession of stolen property), Cal. Vehicle Code section 10851(a) (theft of a vehicle), Cal. Health & Safety Code section 11378 (possession of methamphetamine for sale), and Cal. Health & Safety Code section 11377(a) (possession of methamphetamine). Hong Decl. Ex. B at 6:16; Constantino Decl. ¶ 9. Constantino also learned that Jinzo's license was expired, that he had no outstanding warrants, and that he was not on probation or parole. Leonida Decl. Ex. A at DP-0525; Hong Decl. Ex. B at 6:31. About six and one-half minutes into the stop, Deputy Constantino returned to Perry's vehicle, knowing defendant had a valid license and registration. Constantino did not issue Perry a citation for the traffic violations.
Deputy Constantino then asked Perry to step out of the vehicle. Id. at 6:37. Constantino asked Perry "if he knew anything about firecrackers being exploded at Public Storage." Id. at 7:16. Perry admitted that he "lit up one." Id. at 7:20. Deputy Constantino continued to ask Perry questions, including whether there was "anything illegal inside the car[.]" Id. at 8:21. Perry replied, "No." Id. Deputy Constantino asked if everything in the car belonged to Perry, and Perry said some of the items belonged to two friends who also used his storage locker. Id. at 8:23. Constantino then asked for permission to search the car. Id. Mr. Perry asked, "What for?" Id. at 8:45, to which the deputy responded, "I wouldn't be doing my job if I didn't ask." Id. at 8:50. Mr. Perry declined, stating, "It's nothing disrespectful or anything. . . . I just like to exercise my rights." Id. at 8:49-9:05.
At some point San Mateo Sheriff's Deputy Grasty arrived on scene. Constantino questioned Perry a little longer and then ordered him to get into a patrol vehicle, at which point Perry said, "I feel like I am being profiled." Id. at 11:16. Deputy Grasty, who stayed with Perry in the vehicle, told him: "I'm going to get you out of here in just a minute." Id. at 11:25.
Deputy Constantino then questioned Jinzo about what he and Perry were doing at Public Storage, "what was there yesterday," and whether he saw a tool box in Perry's storage locker. Id. at 12:05-12:24. Jinzo stated there was a tool box, but in response to whether there was an air compressor, Jinzo stated, "Not that I know of." Id. at 12:24-33. Constantino then asked whether he saw any other Craftsman tools, and Jinzo replied that he saw Milwaukee brand tools and "didn't see any Craftsman." Id. at 12:39-50. Constantino also asked whether Jinzo saw any fishing poles, and Jinzo replied, "Yeah, a few. . . . Just a bundle of `em. I don't know, maybe four or five." Id. at 12:51-54. The recording is difficult to decipher around 15:00 where Constantino began to ask Jinzo again about the air compressor, a tool box, and a grinder. Id. at 15:25-59; see also Constantino Decl. ¶ 12 (recounting conversation with Jinzo).
Constantino Decl. ¶¶ 11, 13-15.
The deputies then arrested Perry and Jinzo for identity theft, possession of narcotics, and possession of stolen property, and Perry's car was towed. Id. at ¶ 16; Leonida Decl. Ex. C at DP-0034. The entire detention lasted one hour and twelve minutes.
On May 22, 2018, Constantino applied for a state search warrant for defendant's storage unit at Public Storage as well as his vehicle. Hong Decl. Ex. A, ¶ 16. California Superior Court Judge Mark Forcum authorized the search of Perry's vehicle and search storage unit. Id. In executing the warrant for the storage unit, the Sheriff's office discovered stolen items belonging to Edwards and others. In Perry's vehicle, they found a Sentry Safe containing the lower receiver for a Springfield firearm and a loaded magazine, as well as the upper receiver for the firearm in the back seat and another loaded magazine in the trunk. Id. These are the items defendant is charged with possessing in this case and that he seeks to suppress.
Defendant contends that his rights under the Fourth Amendment were violated because Deputy Constantino unreasonably prolonged the traffic stop to investigate the storage locker burglary. Defendant argues that even if Constantino was initially justified in seizing him during the traffic stop for the traffic violations, once the officers completed all tasks related to the traffic stop, they were required to release him and they were not permitted to conduct an unrelated investigation regarding the storage locker burglary. Defendant argues that the officers needed to have independent reasonable suspicion that defendant had committed the storage locker burglary to question him about that crime, and that they lacked any such reasonable suspicion.
"[T]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. United States, 439 U.S. 128, 131 n.1 (1978); United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005). "A stop of an automobile that is based on probable cause to believe that a traffic violation has occurred complies with the mandates of the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 810, 813 (1996); see also United States v. Willis, 431 F.3d 709, 717 (9th Cir. 2005) ("Whren and Lopez-Soto require that the officers have reasonable suspicion to stop a driver for traffic infractions, not that the officers issue citations.").
In Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609 (2015), the Supreme Court held that a traffic stop "seizure remains lawful only `so long as [unrelated] inquiries do not measurably extend the duration of the stop." Id. at 1615. "An officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. The Court held that "[b]eyond determining whether to issue a traffic ticket, an officer's mission includes `ordinary inquiries incident to [the traffic] stop[,]" such as "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. To conduct tasks connected to an unrelated criminal investigation, an officer must have independent individualized reasonable suspicion to support the unrelated criminal investigation activities. Id. at 1615-16; see also United States v. Gorman, 859 F.3d 706, 715 (9th Cir.), order corrected, 870 F.3d 963 (9th Cir. 2017) ("Police simply may not perform unrelated investigations that prolong a stop unless they have `independent reasonable suspicion justifying [the] prolongation.'").
Here, there is no question that the officers engaged in tasks unrelated to the traffic stop, and that those activities prolonged the traffic stop to a considerable degree. Approximately six and a half minutes into the traffic stop, Deputy Constantino had completed the traffic-stop related activities of checking Perry and Jinzo's identifications and determining whether there were any outstanding warrants against Perry or Jinzo. Thus, absent reasonable suspicion to believe that Perry had committed the Public Storage burglary, the officers could not prolong the traffic stop to question Perry and Jinzo about the burglary.
"Reasonable suspicion requires `specific, articulable facts' which, together with `objective and reasonable' inferences, form a basis for suspecting that a particular person is engaged in criminal conduct." United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000) (quoting United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989)). The reasonable suspicion analysis "must look at the `totality of the circumstances' of each case to see whether the detaining officer ha[d] a `particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002); see also Thomas, 211 F.3d at 1192 ("[T]he reasonable suspicion calculus takes into consideration the totality of the circumstances."). "Reasonable suspicion must be based on more than an officer's `inchoate and unparticularized suspicion or hunch.'" Id. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
The government argues that Constantino had reasonable suspicion to prolong the traffic stop because of the following: (1) Domingo told Constantino the storage lockers were examined on the morning of May 19, and there were no issues; (2) defendant was at Public Storage after the locks were checked on May 19 between 5:20 p.m. and 5:45 p.m. and before the discovery of the drilled lock on May 20 between 8:31 a.m. and 9:10 a.m.; (2) Domingo saw defendant near the burgled storage locker, and saw defendant putting a black "tool bag" in his trunk; (4) Constantino observed hand tools and screwdrivers in defendant's vehicle during the stop; (5) Constantino was aware that defendant had been arrested for "theft crimes" and was a suspect in storage unit burglaries; and (6) defendant admitted to lighting a firecracker at Public Storage, and firecrackers were stolen from Edwards' storage locker.
Defendant contends that these factors do not amount to reasonable suspicion. Defendant argues that the information from Domingo was nothing more than a hunch and that Domingo did not provide any specific or articulable facts suggesting that Perry had broken into the storage locker. Defendant argues that Domingo did not see Perry in possession of anything that was stolen from the storage locker, and defendant notes that Edwards did not report that a black tool bag had been stolen. Defendant also argues that the fact that Constantino saw some small, miscellaneous hand tools in defendant's car did not create reasonable suspicion to believe that defendant stole Edwards' large power tools and a double-stacked toolbox. Defendant contends that in the absence of any facts pointing to reasonable suspicion to believe that he had burgled the storage locker, his "criminal history" of prior arrests contributes nothing to the reasonable suspicion determination.
Citing United States v. Thomas, 211 F.3d 1186 (9th Cir. 2000), defendant also argues that the information Officer Constantino learned from the RIMS search could not supply reasonable suspicion. In Thomas, FBI agents told a Pima County detective that he "might want to pay particular attention to a certain house" in Tucson because there was "a suspicion that there was a possibility that there might be some narcotics" there. Id. at 1188. The detective began surveillance of the house that same morning. He observed four people leaving the house by car in the morning, another person who left with a bag by car several hours later (and who was pulled over by an officer and searched, but no drugs were found), and then a little while later, he observed two men who arrived at the house in a Chevrolet El Camino, which had a large bed in the in the rear like a pickup truck. Id. & n.2. The men opened the garage and backed the El Camino half-way into the garage, and the men went inside the garage. The detective could see the front end of the vehicle, but not its rear, and could see a portion of the garage interior, which was stacked with ordinary household items. Id. at 1188. The detective then heard three or four thumps from inside of the garage, which the detective testified were consistent with the sounds of packages of marijuana being loaded into the car. Id. at 1189. The men then drove away in the vehicle, and the detective radioed two other officers to stop the El Camino. During the stop, the officers found five packages of marijuana in the bed of the car, as well as a shotgun behind the front seat. Id.
The Ninth Circuit held that the officers did not have reasonable suspicion to conduct the stop. The court held that the FBI tip "was devoid of specifics: no information about the occupants of the house, vehicles involved, any particular suspicious conduct, or the kind of narcotics at issue." Id. The court found that the tip "was expressed in an exceedingly equivocal and attenuated manner: the `suspicion' of a `possibility' that there `might' be narcotics. It was entirely conjectural and conclusory." Id. at 1190. The court also held that "[t]he number of arrivals and departures that Jankowski observed over the course of the morning and afternoon was not in any respect unusual, and the detective did not have any information as to whether the people coming and going were residents, family members, frequent visitors, or strangers." Id. The court noted that "the only relevant evidence Jankowski possessed regarding the presence or absence of drug activity contradicted his theory that the house was used" because the individual who had left with the bag and who was pulled over and searched did not have any drugs on him. Id. Finally, the court held that the detective's testimony about hearing the thumps of packages consistent with dropping of marijuana packages could not support reasonable suspicion because marijuana "does not have a distinctive sound" and "[t]he thumps that Jankowski heard could have been generated by dropped 12- or 13-pound bags or bales of potting soil, cut grass, bird seed, dog food— anything." Id. at 1191.
Defendant contends that the information from Domingo and the RIMS search of Perry's name are like the FBI tip in Thomas. Defendant argues that "Ms. Domingo's bare allegation that Mr. Perry was somehow involved in the storage locker burglary at her facility was not supported by any specific or articulable facts." Defendant argues that there was no information in the RIMS database explaining why defendant was listed as a suspect in the Belmont storage locker burglary, and to the contrary, the police reports for the Belmont storage locker burglary as of May 20, 2018 did not mention defendant's name anywhere.
The Court finds that it is a close question but concludes that the government has met its burden of production by coming forward with "specific and articulable facts," Terry, 392 U.S. at 21, to show that Officer Constantino had reasonable suspicion to believe that defendant had committed the storage locker burglary prior to the traffic stop.
Significantly, Constantino knew from the RIMS search that another San Mateo County Sheriff's Deputy had identified Perry as a suspect in a recent February 2018 storage locker burglary in Belmont.
Defendant raises several challenges to the search warrant and Officer Constantino's search warrant affidavit. First, defendant contends that the search warrant is invalid because Officer Constantino's affidavit hinged on the fruits of the prolonged detention. However, the Court's conclusion that Officer Constantino had reasonable suspicion to justify the prolonged detention forecloses that contention.
Second, defendant contends that Officer Constantino's search warrant affidavit intentionally or recklessly contained materially false statements and/or misleading omissions of fact. Defendant argues that Officer Constantino made the following misleading statements in his affidavit: he told the issuing judge that Jinzo "confirmed he had seen a red Craftsman-brand air compressor tank and a red Craftsman-brand tool box. I asked if he had seen any fishing poles. Jinzo told me he had seen four." Leonida Decl. Ex. A at DP-0526. Defendant argues that the dash cam videos show that these statements were false because: (1) when Constantino asked if Jinzo had seen an air compressor, Jinzo first replied, "not that I know of"; (2) when Constantino asked if there were any other Craftsman tools," Jinzo said, "I didn't see any Craftsman," and that Perry's tools were all Milwaukee brand; (3) and when Constantino asked if the locker contained any fishing poles, Jinzo said it contained "just a few of them" and then later said "four to five." Defendant also argues that Officer Constantino omitted from his affidavit the fact that when he asked Jinzo whether he saw a Craftsman-brand bench grinder, Jinzo said "no."
Officer Constantino was questioned about his search warrant affidavit at the November 15, 2018 evidentiary hearing. Officer Constantino testified that although Jinzo initially said he had not seen an air compressor, Jinzo also said he did not know what an air compressor was, and that after Constantino described it, Jinzo said he had seen an air compressor in Perry's storage locker. Constantino Tr. at 12:8-13:20 (Dkt. No. 41). With regard to the fishing poles, Constantino testified that when he asked Jinzo if he had seen any, Jinzo said "four to five." Constantino stated that he wrote that Jinzo said "four" fishing poles based on his recollection. Id. at 13:23-14:14:16. Constantino also testified that Jinzo stated he saw a single-stack tool box, "which to my knowledge he saw one piece to a two-piece set." Id. at 12:2-5.
"To prevail on a Franks challenge, the defendant must establish two things by a preponderance of the evidence: first, that `the affiant officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant[,]' and second, that the false or misleading statement or omission was material, i.e., `necessary to finding probable cause.'" United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017) (quoting United States v. Martinez-Garcia, 397 F.3d 1205, 1214-15 (9th Cir. 2005)). If both requirements are met, "the search warrant must be voided and the fruits of the search excluded. . . ." Franks v. Delaware, 438 U.S. 154, 156 (1978).
After review of the dash cam evidence, the search warrant affidavit, and Officer Constantino's testimony at the November 15, 2018 hearing, the Court concludes that defendant has not met his burden to succeed on the Franks challenge. The Court finds that defendant has not shown that Officer Constantino intentionally or recklessly made false or misleading statements or omissions in his affidavit. The statements about the air compressor and the number of fishing poles were not false, although it is the Court's view that Officer Constantino should have been more precise by including the facts that Jinzo initially said he did not see an air compressor, and that Jinzo said he saw a "few" and "four or five" fishing poles. The Court is more troubled by Officer Constantino's statement that Jinzo confirmed that he saw a red Craftsman-brand double stacked tool box because Jinzo did not actually say that. However, Constantino did ask whether Jinzo saw a red Craftsman-brand double stack tool box, and Jinzo replied that he saw a single-stack, without specifically (again) denying that it was a Craftsman-brand tool box. The Court cannot conclude, however, that Constantino intentionally or recklessly made a false statement, and instead it appears to the Court that Officer Constantino does not have much experience preparing search warrant affidavits, and that he was sloppy in his phrasing. See Perkins, 850 F.3d at 1116 ("A negligent or innocent mistake does not warrant suppression."). Finally, the Court finds that the omission of the fact that Jinzo denied seeing a bench grinder was not material because Constantino included in the affidavit the statement that Jinzo denied seeing Perry break into a storage locker.
For the foregoing reasons, the Court DENIES defendant's motion to suppress.
The police report that Officer Constantino prepared after arresting Perry and Jinzo for the storage locker burglary at Public Storage, 145 Shoreway Rd., San Carlos, states that after Constantino found Tabak's stolen items in Perry's car, Constantino contacted Tabak and then "later reviewed case #18-2126." Leonida Decl, Ex. C at DP-0028.
Constantino Decl. ¶ 12.
