United States District Court, D. Minnesota
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Joshua Lamar Reed moves for a hearing pursuant to Franks
v. Delaware, 438 U.S. 154 (1978). Reed is charged with
one count of being a Felon in Possession of a Firearm. He
challenges the affidavit submitted by St. Paul Police Officer
Thomas Diaz when Officer Diaz applied for the warrant
authorizing him to take a DNA sample from Reed. Reed has met
his “substantial preliminary showing” for a
Franks hearing. 438 U.S., at 155-56.
enforcement arrested Reed on a parole violation warrant on
June 22, 2017. Gov't Ex. 3 (Incident Report). Based upon
cell phone location data, officers established surveillance
near 1895 Beaumont Street in Maplewood, Minnesota at
approximately 7:30 p.m. Id. at 1-2. Shortly after,
Reed and another person came out of 1895 Beaumont and got
into an Oldsmobile parked in front of the house. Id.
at 2. None of the observing officers noted Reed to be
carrying a backpack. Id. at 2; Audio Recording:
Pretrial Mot. Hr'g (Sept. 17, 2018). Reed got into the
front passenger side of the car. Id. The car drove
away, and officers followed. Gov't Ex. 3, at 2. One
officer drove by and confirmed Reed was the passenger in the
marked St. Paul police vehicle activated its lights and
sirens. Id. Instead of stopping, the Oldsmobile led
police on a brief “slow speed” chase.
Id.; Audio Recording: Pretrial Mot. Hr'g.
Eventually, the car stopped at a dead end. Gov't Ex. 3,
at 2. Reed ran from the Oldsmobile, but was caught by police
and arrested. Id. Meanwhile, other officers arrested
the driver of the Oldsmobile and found a backpack on the
floor of the front passenger seat. Id. Inside the
backpack, officers found a gun, marijuana, a jewelry store
receipt, and several photographs. Id. at 3.
next day, Officers Boerger and Diaz of the St. Paul Police
Department interviewed Reed and took a cheek swab for his
DNA. Audio Recording: Pretrial Mot. Hr'g. Officer Diaz
had received a warrant for the DNA from a Ramsey County
district judge earlier that day. Gov't Ex. 2 (Appl. for
Search Warrant and Search Warrant). In the application for
the warrant, Officer Diaz described Reed's arrest. He
stated that officers began their surveillance “at
approximately 2249hrs, ” and that “shortly
thereafter” they saw Reed and another person get into
the Oldsmobile. Id. (Appl. 1). He also stated that
“[a]s officers instructed REED to step away from the
vehicle, he quickly entered the passenger side door of the
vehicle and the vehicle sped away from the scene . . .
.” Id. (Appl. 2). He did not say that anyone
saw Reed with the backpack. Id.
pretrial motion hearing, Reed's counsel cross-examined
Officer Schwab, who had been a part of the task force that
apprehended Reed and who had submitted a report. Officer
Schwab confirmed that neither he nor anybody else involved in
the arrest saw Reed carrying a backpack. Audio Recording:
Pretrial Mot. Hr'g. Counsel also cross-examined Officer
Boerger. Officer Boerger testified that, prior to
interviewing Reed, he followed up on the receipt found in the
backpack. Id. He reviewed the security footage from
the jewelry store and stated that the person who made the
purchase on the receipt was not Reed. Id.
requests a hearing to support his Franks claim that
Officer Diaz's affidavit for the DNA warrant
“intentionally or recklessly omitted facts material to
a finding of probable cause.” Mot. to Suppress Evidence
Obtained Through Franks Violation 1, Docket No. 32. “A
search warrant may be invalid if the issuing judge's
probable cause determination was based on an affidavit
containing false or omitted statements made knowingly and
intentionally or with reckless disregard for the
truth.” United States v. Conant, 799 F.3d
1195, 1199 (8th Cir. 2015) (quoting United States v.
Reinholz, 245 F.3d 765, 774 (8th Cir. 2001)). To prevail
on a Franks claim based on at least reckless
disregard for omissions of fact, Reed must show: “(1)
that facts were omitted with the intent to make, or in
reckless disregard of whether they make, the affidavit
misleading; and (2) that the affidavit, if supplemented by
the omitted information, could not support a finding of
probable cause.” Reinholz, 245 F.3d, at 774.
a Franks hearing, Reed must make “a
substantial preliminary showing” that the affiant at
least recklessly disregarded the truth through a false
statement or omission and that the false statement or
omission “is necessary to the finding of probable
cause.” Franks, 438 U.S., at 155-56. This
preliminary showing requires Reed to “offer specific
allegations along with supporting affidavits or similarly
reliable statements.” United States v.
Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015). “A
Franks hearing must be denied unless the defendant
makes a strong initial showing of deliberate falsehood or
reckless disregard for the truth.” United States v.
Freeman, 625 F.3d 1049, 1052 (8th Cir. 2010). For
omissions, recklessness “may be inferred . . . when the
material omitted would have been clearly critical to the
finding of probable cause.” Conant, 799 F.3d,
at 1200 (quoting United States v. Glover, 755 F.3d
811, 816 (7th Cir. 2014)).
Court concludes that Reed has met his burden to make a
substantial preliminary showing. As Reed notes in his motion,
issuance of the DNA warrant required probable cause linking
him to the gun found in the backpack. “Where the
standard is probable cause, a search or seizure of a person
must be supported by probable cause particularized with
respect to that person.” Ybarra v. Illinois,
444 U.S. 85, 91 (1979). The warrant affidavit links Reed to
the gun by emphasizing Reed's seat in the vehicle before
he fled and where the backpack was found. But it omits other
facts that would have been critical to a probable cause
finding because they suggest a disconnect between Reed and
the backpack. Through cross-examination, Reed's counsel
highlighted that officers never saw Reed with the backpack,
and that the backpack contained a receipt that connected the
backpack to another person. These facts, if included,
undermine what little probable cause there already was to
connect Reed to the backpack, which was in another
person's car, in which Reed was a passenger. The omission
of these facts allowed a judicial officer to draw inferences
about Reed's control of the backpack that may well not be
drawn if included.
this is a case of omitted, rather than false affirmative
statements, and goes to the heart of probable cause, the
Court infers the officer-affiant's reckless disregard for
the truth.Conant, 799 F.3d, at 1200.
Disposition of ...