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United States v. McMillan

United States District Court, D. Minnesota

May 25, 2018

United States of America, Plaintiff,
v.
Evan Kasadine McMillan, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          Wilhelmina M. Wright United States District Judge

         This matter is before the Court on the March 16, 2018 Report and Recommendation (R&R) of United States Magistrate Judge Becky R. Thorson. (Dkt. 38.) The R&R recommends denying Defendant Evan Kasadine McMillan's motion for a Franks hearing and his motion to suppress evidence obtained from McMillan's apartment during the execution of a search warrant. McMillan filed objections to the R&R, and the United States responded. For the reasons addressed below, the Court overrules McMillan's objections and adopts the R&R.

         BACKGROUND[1]

         McMillan disputes the legal grounds for the search warrant obtained for his apartment based on the affidavit of Task Force Officer Thomas Diaz. As relevant here, Officer Diaz's affidavit relates information that addresses McMillan's presence at a retail establishment during the theft of a firearm. The affidavit also describes a SnapChat video[2] that, according to Officer Diaz, was posted 42 minutes before Officer Diaz viewed it. The SnapChat video allegedly showed McMillan possessing a firearm. Officer Diaz's affidavit also states his belief that the SnapChat video was recorded in McMillan's apartment. This information led Officer Diaz to conclude that firearms were located in McMillan's apartment. Finally, Officer Diaz's affidavit states that McMillan could not lawfully possess a firearm because of McMillan's criminal history. Based on the information contained in Officer Diaz's affidavit, a magistrate judge issued a search warrant for McMillan's apartment. Law enforcement officers subsequently seized a gun, ammunition, and other related items from McMillan's apartment, pursuant to the warrant.

         Shortly thereafter, a federal grand jury returned an indictment charging McMillan with possession of a firearm and ammunition by a prohibited person, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(e)(1). McMillan challenges the legality of the search and seeks a hearing, Franks v. Delaware, 438 U.S. 154 (1978), to establish that Officer Diaz omitted relevant information from the affidavit Officer Diaz submitted to support the issuance of the search warrant for McMillan's apartment. McMillan also moves to suppress the evidence obtained from his apartment, arguing that the search warrant did not establish a fair probability that evidence of contraband would be in the apartment. The R&R recommends denying both McMillan's motion for a Franks hearing and his motion to suppress evidence.

         ANALYSIS

         McMillan objects to both recommendations of the R&R. He argues that his motion for a Franks hearing should be granted and that the Court's probable-cause determination should be postponed until the Court assesses the evidence produced at the Franks hearing. Each objection is addressed in turn.

         I. Franks Hearing

         McMillan contends that the R&R erroneously applied a “literal and formulistic review” of three alleged omissions from Officer Diaz's affidavit. When properly considered, McMillan argues, these omissions establish the need for a Franks hearing. The Court reviews this objection de novo. 28 U.S.C. § 636(b)(1); accord LR 72.2(b)(3).

         A Franks hearing should be granted based on alleged omissions from a search warrant affidavit when a defendant makes a “substantial preliminary showing” that (1) the affiant omitted facts either intentionally to render the affidavit misleading or with reckless disregard of whether the omitted facts would render the affidavit misleading, and (2) if supplemented with the omitted facts, the affidavit would not support a finding of probable cause. United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993); see also Franks, 438 U.S. at 155-56. To make a “substantial preliminary showing, ” a defendant must offer “specific allegations along with supporting affidavits or similarly reliable statements.” United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015) (internal quotation marks omitted).

         According to McMillan, a Franks hearing is necessary to address three omissions from Officer Diaz's affidavit. But as to two of these alleged omissions-regarding the firearm theft and the timing of the SnapChat video-McMillan offers neither supporting affidavits nor similarly reliable statements to corroborate his contentions. McMillan instead argues that he “will offer evidence” to support his allegations at the Franks hearing. Stating an intent to offer evidence in the future does not satisfy McMillan's immediate burden to justify the need for a Franks hearing, however. See Gonzalez, 781 F.3d at 430. “A mere allegation standing alone, without an offer of proof . . . is insufficient to make the difficult preliminary showing” for a Franks hearing. United States v. El-Alamin, 574 F.3d 915, 925 (8th Cir. 2009) (internal quotation marks omitted). McMillan's unsubstantiated allegations about these possible omissions from Officer's Diaz's affidavit do not meet the substantial showing necessary to justify a Franks hearing.[3]

         McMillan's third alleged omission relates to Officer Diaz's belief that the SnapChat video showing McMillan possessing a firearm was recorded in McMillan's apartment. According to an investigative report, Officer Diaz had stood only in the entryway to McMillan's apartment on a prior occasion. This limited access, McMillan argues, is insufficient to establish Officer Diaz's personal knowledge to support his statement that the SnapChat video was made in McMillan's apartment. But McMillan's argument mischaracterizes Officer Diaz's affidavit testimony. The affidavit does not state that the SnapChat video originated in McMillan's apartment. Instead, Officer Diaz stated his belief that the SnapChat video was made in McMillan's apartment, a belief that is supported by the many areas of the apartment shown in the SnapChat video. Because Officer Diaz truthfully related his belief about the location of the SnapChat video, this aspect of Officer Diaz's affidavit is not misleading. Cf. United States v. Clapp, 46 F.3d 795, 800-01 (8th Cir. 1995) (assessing truth of affiant's statement and determining that affiant's statement, although inaccurate, was not made in reckless disregard of the truth).

         For these reasons, the Court overrules McMillan's objection to this aspect of the R&R and denies McMillan's motion for a Franks hearing.

         II. ...


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