WILMA A. LEWIS, Chief District Judge.
During a hearing to address Defendant Roosevelt Dowling's ("Defendant" or "Dowling") "Motion to Suppress Evidence and/or Franks Hearing," (Dkt. No. 17) ("Motion to Suppress") and the Government's opposition thereto (Dkt. No. 18), the Court denied Defendant's request for a Franks hearing and advised the parties that its reasons therefor would follow at a later date.
On January 25, 2017, Drug Enforcement Administration ("DEA") Task Force Officer David Wyrzykowski ("TFO Wyrzykowski") applied for a search warrant for Dowling's residence located at 21D La Grande Princesse in St. Croix and another search warrant for Dowling's vehicle, a red 2007 BMW. TFO Wyrzykowski's affidavits, which were identical for each of the search warrants, included the following information that he obtained from his Confidential Source ("CS"), Mae Agnes Brewster ("Brewster"):
(Government Ex. Nos. 1 and 2). The affidavits also included several paragraphs which detailed Dowling's previous criminal history, including a conviction in 2015 stemming from his arrest wherein Dowling was in possession of approximately 13 pieces of crack cocaine (Paragraph Nos. 4-5), and the results of a welfare check conducted by the Virgin Islands Territorial Marshals and Probation Officers in 2016 wherein the Marshals and Probation Officers seized, among other things, 292 marijuana plants, $36,125 in U.S. currency, and 42.7 grams of crack cocaine from Dowling's residence at 21D La Grande Princesse. Id.
Magistrate Judge George W. Cannon, Jr., issued search warrants for Dowling's residence and vehicle. Id. On January 30, 2017, members of the DEA St. Croix Resident Office executed the warrants. The search resulted in the seizure of distribution amounts of crack cocaine and cocaine, drug paraphernalia, and a large undetermined amount of U.S. currency. Outside of the residence, officers seized 19 marijuana plants in various stages of growth. In addition, on the same day, a motor vehicle stop was conducted on a red BMW operated by Dowling. During the post-arrest search, officers seized vials of marijuana from his person. (Criminal Action No. 17-mj-0004, Dkt. No. 1-1 ¶¶ 4-5).
On April 13, 2017, Brewster gave testimony before a grand jury which, in some instances, contradicted information she had previously provided to the Government. (Dkt. No. 17 at 8-9). Brewster also submitted two letters—one dated June 9, 2017 and the other dated September 13, 2017—to Magistrate Judge Cannon, where she admitted to "lying" to law enforcement about the allegations she made against Dowling. (Dkt. No. 17-1, Def. Exs. A & B). She explained that she lied because: (1) she was mad at Dowling for putting her out of his house, having a relationship with another woman, and trying to get her to stop using drugs; and (2) she needed money to buy drugs so she lied to the authorities to get money. Id.
In her letter dated June 9, 2017, Brewster stated:
(Dkt. No. 17-1, Def. Ex. A). She also requested that the Government should "leave me alone. I don't want to go back to jail but I don't want to lie anymore[,] they keep asking me about drugs in the house so I hide some in the bathroom thinking they and Dowling will never find it." Id. Brewster also stated that she no longer wanted to be involved in the case against Dowling because she "lied for the money to get drugs. I don't want to keep on lying. I do not remember, I was high all the time. . . Since that day, when all this began, whatever I say or what they want me to say will be a lie or a make-up story. I was using drugs too hard to really remember what was real and what wasn't real." (Dkt. No. 17-1, Def. Ex. B).
On August 15, 2017, the Government filed an Indictment against Dowling charging him with: (1) Possession of Crack Cocaine With Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); (2) Possession of Cocaine Powder With Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and (3) Possession of Marijuana With Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). (Dkt. No. 1). Dowling subsequently filed a motion seeking to suppress all evidence obtained during the January 30, 2017 search of his residence and vehicle. (Dkt. No. 17). In the context of that motion, Dowling presented his arguments in support of his request for a Franks hearing.
Dowling asserts that the search warrants that were executed on his residence and vehicle lacked probable cause and are thus invalid because the supporting affidavits contained false statements and omissions. Specifically, Dowling alleges that TFO Wyrzykowski's statements were either intentionally false or made with reckless disregard for the truth, as they used what Dowling contends was false information provided by Brewster, who was TFO Wyrzykowski's informant. Id. at 2, 13. Dowling argues that the Government knew that Brewster's information was "unreliable and untrustworthy" because TFO Wyrzykowski was aware that she was a "known drug addict" and that she "was not being truthful with [him] regarding the information she was providing." Id. at 2, 13. Moreover, Dowling contends that Brewster's drug use, which was omitted from the affidavits, was information that should have been presented to the Magistrate Judge. Dowling argues that Magistrate Judge Cannon was "misled" and that his finding of probable cause was "plagued by false statements provided by TFO [] Wyrzykowski." Id. at 13.
The Government opposes Dowling's request for a Franks hearing, arguing that Dowling's request should be denied because the latter does not make a substantial preliminary showing that false statements were included in the affidavit. (Dkt. No. 18 at 1, 4). Thus, the Government contends that, contrary to Dowling's assertion, the search warrants are not invalid because they were prepared truthfully by TFO Wyrzykowski and were supported by probable cause. Id. at 3.
The Court agrees with the Government and finds that Dowling's arguments are insufficient to support his request for a Franks hearing. Accordingly, Defendant's "Motion to Suppress Evidence and/or Franks Hearing" will be denied.
The Fourth Amendment to the United States Constitution provides:
U.S. Const. amend. IV. Accordingly, the threshold requirement for issuance of a warrant is probable cause. United States v. Ritter, 416 F.3d 256, 262 (3d Cir. 2005). This, according to the Supreme Court, is the "bulwark of Fourth Amendment protection." Franks v. Delaware, 438 U.S. 154, 164 (1978).
A warrant is determined to be supported by probable cause if, "based on a totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also United States v. Yusuf, 461 F.3d 374, 390 (3d Cir. 2006) ("Th[e] determination [of probable cause] does not require absolute certainty that evidence of criminal activity will be found at a particular place, but rather that it is reasonable to assume that a search will uncover such evidence."). Thus, "a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause," so that a judicial officer can "make an independent evaluation of the matter." Franks, 438 U.S. at 165.
An affidavit of probable cause supporting a search warrant is generally presumed to be valid. See Yusuf, 461 F.3d at 383. However, in Franks, the Supreme Court established a defendant's right to challenge the truthfulness of statements made by law enforcement agents in an affidavit used to secure a search warrant. Id. This right has also been interpreted to permit challenges based on factual omissions from the warrant affidavit. United States v. Heilman, 377 F. App'x 157, 177 (3d Cir. 2010). If a defendant is successful in proving—by a preponderance of the evidence—that a warrant was issued based on "a false statement that was both material to the finding of probable cause and made either knowingly and intentionally or with reckless disregard for the truth," then evidence obtained pursuant to the warrant must be suppressed. United States v. Brown, 631 F.3d 638, 641-42 (3d Cir. 2011) (citing Franks, 438 U.S. at 155-56); United States v. Frost, 999 F.2d 737, 743 (3d Cir. 1993) ("Thus, in order to secure suppression of the fruits of the search, a defendant must show both that bad faith or reckless disregard existed on the part of the affiant, and that there would have been no probable cause but for the incorrect statement.").
To warrant a Franks hearing, a defendant must first make a "substantial preliminary showing" that the affidavit contained a false statement which (a) was made knowingly and intentionally or with reckless disregard for the truth and (b) is material to the finding of probable cause. Heilman, 377 F. App'x at 177 (citing Franks, 438 U.S. at 155-56); Yusuf, 461 F.3d at 383. "The preliminary-showing requirement is intended to `prevent the misuse of a veracity hearing for purposes of discovery or obstruction.'" Heilman, 377 F. App'x at 177 (quoting Franks, 438 U.S. at 170-71).
To make this preliminary showing, a defendant must first specifically identify the alleged false statements or omissions in the warrant affidavit that were made knowingly and intentionally, or with reckless disregard for the truth, and provide a statement of reasons supporting the argument. Franks, 438 U.S. at 171. A defendant cannot rely on conclusory allegations. Id. ("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."). Rather, "[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof." Id.
If a defendant does not make this "substantial preliminary showing," his request for a Franks hearing fails. Brown, 3 F.3d at 677. If a defendant makes a substantial showing that the affidavit contained knowing and intentional, or recklessly false, information, the Court must then determine whether the false information was "material" to the finding of probable cause. Yusuf, 461 F.3d at 383-84. In determining the materiality of the information, if probable cause remains after the affidavit has been "corrected" by either excising the false information or supplying the omitted information, the disputed statements were not "material" and a Franks hearing is not required. If probable cause does not exist after such correction, the disputed statements were "material" and the defendant is thus entitled to a Franks hearing. Franks, 438 U.S. at 172; Sherwood, 113 F.3d at 399-402; United States v. Dennis, 2011 WL 3515903, at *7-8 (D.V.I. Aug. 11, 2011).
Dowling first asserts that TFO Wyrzykowski's affidavit contains several material misstatements. (Dkt. No. 17 at 5). Dowling points to the two letters Brewster sent to Magistrate Judge Cannon and the contradictions in her grand jury testimony as evidence that Brewster lied about the information she provided to the DEA, including to TFO Wyrzykowski. (Dkt. No. 17 at 8-9). Dowling argues that because Brewster "admits to having lied to [Wyrzykowski and the other case agents] in order to obtain money to buy drugs," id. at 2, and because "she was coerced by the [c]ase [a]gents to continue lying or they [would] put her in jail," id. at 9, TFO Wyrzykowski should not have utilized Brewster's information in his affidavit. According to Dowling, TFO Wyrzykowski "had knowledge [] or at least a reasonable suspicion that [Brewster] was using drugs and/or was not being truthful," id. at 13, but nonetheless chose to "rel[y] on false statements made by [] Brewster that led to an erroneous and improper determination of probable cause, in reckless disregard of the truth . . ." id. Dowling argues that, by "intentionally" or "recklessly" relying on Brewster's information and by using it in his affidavit, TFO Wyrzykowski provided the Magistrate Judge with misleading information. Id. at 18.
Second, during the hearing, Dowling asserted that TFO Wyrzykowski should have included the fact that Brewster was a known drug addict in his affidavit as information for the Magistrate Judge to consider. Dowling argued that, by omitting this information, the Magistrate Judge did not have the full circumstances before him to determine Brewster's reliability as an informant. Dowling asserted that TFO Wyrzykowski intentionally did not disclose this information for fear that it might affect the issuance of the warrant.
Finally, Dowling argues that when "purged of said falsities[,] the affidavit[s] fail[] to establish probable cause" (Dkt. No. 17 at 2), thus warranting a Franks hearing.
The Court finds that Dowling has not made a "substantial preliminary showing" to warrant a Franks hearing.
As a preliminary matter, it is doubtful that Brewster's letters constitute acceptable proof under Franks to meet a "substantial preliminary showing" of false statements because the letters are not "[a]ffidavits or sworn or otherwise reliable statements of witnesses[.]" Franks, 438 U.S. at 171. Further, while the letters are replete with assertions that Brewster lied to the DEA (which was incorrectly identified by Brewster as the FBI in her letters), they are short on specifics as to precisely what she lied about, thus, in turn, making it difficult to identify the false statements in the affidavits and ultimately determine their materiality. See Heilman, 377 F. App'x at 177. In addition, there is no indication in the letters that Brewster told TFO Wyrzykowski that she was lying before he filed the affidavits in support of the search warrants. There are only speculative or conclusory statements regarding his knowledge.
Even assuming that Brewster's letters are sufficient to establish a "substantial preliminary showing" that the affidavits contain false statements, there is no such showing that TFO Wyrzykowski included such false statements knowingly and intentionally or with reckless disregard for the truth. See e.g., United States v. Tutis, 167 F.Supp.3d 683, 699 (D.N.J. 2016) (finding that defendant has not made the substantial showing necessary to obtain a Franks hearing because he has made no showing that the officer knowingly, intentionally, and/or recklessly made a false statement).
First, there is no showing of knowing and intentional conduct by TFO Wyrzykowski. Dowling relies instead on conclusory allegations about TFO Wyrzykowski's knowledge pertaining to the falsity of Brewster's information.
Also lacking is a sufficient showing that TFO Wyrzykowski acted with reckless disregard of the truth. "An assertion is made with reckless disregard when `viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.'" Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000).
Here, there is no evidence in the record to suggest that TFO Wyrzykowski suspected—or had reason to suspect—Brewster was lying to him when he drafted and submitted the affidavits. Indeed, Dowling relies primarily on the allegation that Brewster was a "drug addict." This does not automatically indicate that she was a liar or that her information was not credible. In Heilman, a Third Circuit panel found that defendant failed to provide the requisite preliminary showing to warrant a Franks hearing, refuting defendant's assertion that he warranted such a hearing because the warrant affidavit relied almost exclusively on a confidential informant ("CI") who was a "known methamphetamine user and trafficker who ha[d] a myriad of reasons to provide false information to law enforcement." 377 F. App'x at 178-79 ("The fact that the CI in question is a methamphetamine user does not, in and of itself, indicate that any testimony he gave was false or unreliable.").
Similarly here, TFO Wyrzykowski's affidavit heavily relied on the information from Brewster, whom Dowling alleges was a "known drug user." However, Dowling has offered no evidence that TFO Wyrzykowski knew that Brewster was a drug user before her submission of letters to the Magistrate Judge or before TFO Wyrzykowski drafted his affidavits. Even assuming that he had such knowledge, known drug use does not automatically translate into false statements, nor any such suggestion of falsity. Thus, Brewster's claimed "known drug use[]" does not establish a sufficient basis for concluding that TFO Wyrzykowski included false statements knowingly and intentionally or with reckless disregard for the truth.
Dowling's failure to make a substantial preliminary showing that the alleged false statements were made knowingly and intentionally, or with reckless disregard for the truth, is fatal to his request for a Franks hearing. Brown, 3 F.3d at 676-78.
Defendant's argument that he merits a Franks hearing because the warrant affidavits omitted the fact that Brewster is a "drug addict" is also unavailing. The fact that Brewster was a drug addict, without more, is insufficient to show that TFO Wyrzykowski's omission of this fact was knowing and intentional or reckless. "[O]missions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would want to know." Wilson, 212 F.3d at 783. Further, "recklessness is measured not by the relevance of the information, but the demonstration of willingness to affirmatively distort truth." Id. at 788. In view of the affidavits' contents, which bear on Brewster's reliability, Dowling has failed to make a sufficient showing that the omission by TFO Wyrzykowski was either knowing and intentional or reckless.
Here, again, there is no showing of knowing and intentional conduct on the part of TFO Wyrzykowski to omit Brewster's drug use from Magistrate Judge Cannon's consideration. As to recklessness, while it can be argued that "any reasonable person would want to know"—and certainly a judge determining probable cause—that the informant here was a drug addict, TFO Wyrzykowski sufficiently presented, as required by Franks, the "underlying circumstances from which [his] informant concluded that relevant evidence might be discovered, and some of the underlying circumstances from which [TFO Wyrzykowski] concluded that the informant . . . was `credible' or h[er] information `reliable." Franks,438 U.S. at 165.
In this regard, TFO Wyrzykowski's affidavit described in detail how Brewster "concluded that relevant evidence might be discovered" in Dowling's residence because she reported being at his residence and personally observing Dowling cook crack cocaine, package it, and hide it around his property. At one point, Brewster specifically described how the drugs were placed in a "baby wipes container" and in "red Tupperwares" and hidden near Dowling's fence line under trash. By including photographs that Brewster sent which corresponded to the information she provided, this gave support for TFO Wyrzykowski's conclusion that Brewster's information was "reliable." Moreover, TFO Wyrzykowski's affidavit contained evidence that one of Brewster's tips was corroborated by one of the other case agents. In Paragraph 18, Brewster reported that Dowling had left his residence on January 19, 2017 with drugs to make his deliveries, and one of the case agents confirmed that he in fact observed Dowling leave his residence at the given time. The Court finds that this corroboration and the photographs which accompanied the affidavit, are sufficient to infer that, at the time he drafted and submitted his affidavits to the Magistrate Judge, TFO Wyrzykowski had reason to believe that Brewster was "credible."
However, "[c]ourts have routinely recognized a distinction between information provided by an informant and that provided by a law enforcement officer or other government agency. Informants are not presumed to be credible, and the government is generally required to show by the totality of the circumstances either that the informant has provided reliable information in the past or that the information has been corroborated through independent investigation." Yusuf, 461 F.3d at 384-85; see also Ritter, 416 F.3d at 263 ("Where corroboration or independent investigation after receipt of an anonymous tip is lacking—and thus the predictive value of the tip goes untested before a warrant is issued—courts have found officers' subsequent reliance on the warrant unreasonable.") (emphasis added).
Here, although there was only one instance where Brewster's information was independently corroborated by a case agent, the absence of further corroboration was not fatal under these circumstances, due to the DEA's prior knowledge of Dowling and his drug activities. In Ritter, the Third Circuit confirmed that the issuance of the warrant in that case was proper even though the officer, after receiving an anonymous tip call, made no attempt to verify the informant's allegations through further independent investigation. The appellate court reasoned that despite this deficiency, the officer had "relevant previous experience with the property in question, [and] included this `historical information [regarding] the previous seizure in August 2002' in his affidavit." Ritter, 416 F.3d at 263. Moreover, the Ritter court noted that the officer's "previous observation, the similarity of the type of offense, the fact that the current tip involved both the house and the surrounding outdoor area . . . all point to the plausible relationship between the previous event and the tip. We can see how an officer and a magistrate could view the tip as establishing an identifiable pattern of activity on the premises." Id.; see also United States v. Stearn, 597 F.3d 540, 557 and 562 (3d Cir. 2010) (identifying the use of prior arrests or convictions for drug offenses and "activity evocative of drug dealing" as supportive of probable cause to search for evidence of a narcotics offense).
According to TFO Wyrzykowski's affidavits, the DEA was already familiar with Dowling's criminal history. Specifically, as a result of Dowling's conviction in a similar case in 2015, surveillances had already been conducted of his residence prior to receiving information from Brewster. Further, in March 2016, during a welfare check conducted by the Virgin Islands Territorial Marshals and Probation Officers, Dowling was found with both marijuana and crack cocaine at the same address where the warrant was executed. Thus, as in Ritter, the circumstances here supported a "plausible relationship" between Dowling's history and the information provided by Brewster, which could result in TFO Wyrzykowski and the Magistrate Judge viewing Brewster's information as "establishing an identifiable pattern of activity on the premises." 416 F.3d at 263. This pattern, together with the similarity of the offenses, rendered further investigation into the reliability of Brewster's statements by the DEA or TFO Wyrzykowski unnecessary for purposes of the issuance of a warrant. In short, TFO Wyrzykowski and the Court were able to have reliably relied on Brewster's information.
Accordingly, the fact that Brewster's drug use was omitted from TFO Wyrzykowski's affidavits does not constitute a "substantial preliminary showing" of recklessness on his part because there is no showing that TFO Wyrzykowski "demonstrate[d] [a] willingness to affirmatively distort the truth" about the matter. Wilson, 212 F.3d at 788. To the contrary, the factors which suggested that the information provided by Brewster could be relied upon properly allowed the Magistrate Judge to determine probable cause, even in the absence of information regarding Brewster's alleged drug addiction.
Moreover, even if one were to assume that the omission of Brewster's drug use was reckless and thus the materiality of this information must be assessed, this would not alter the Court's conclusion. Indeed, probable cause clearly remains even if this information were to be included in the affidavits since information that Brewster was a drug addict does not negate the force of the detailed information and photographs she provided, particularly when coupled with the prior knowledge of Dowling possessed by the DEA as discussed above. Because probable cause exists even after the omitted information is included, the omitted information is not material and a Franks hearing is not warranted.
For the foregoing reasons, the Court finds that Dowling has failed to make a substantial preliminary showing that the information regarding Brewster's drug addiction was omitted from the affidavits knowingly and intentionally or recklessly, or that such omission was material to the finding of probable cause. Accordingly, Dowling's request for a Franks hearing based on the omission shall be denied.
In view of the foregoing, the Court concludes that Dowling has failed to provide a substantial preliminary showing to warrant a Franks hearing. Accordingly, Dowling's "Motion to Suppress Evidence and/or Franks Hearing" will be denied.
An appropriate Order accompanies this Memorandum Opinion.
