United States District Court, D. Minnesota
ORDER ADOPTING REPORT AND RECOMMENDATION
Wilhelmina M. Wright United States District Judge
matter is before the Court on the October 19, 2018 Report and
Recommendation (R&R) and the November 29, 2018 R&R of
United States Magistrate Judge Becky R. Thorson. (Dkts. 98,
120.) The October 19, 2018 R&R recommends denying
Defendant Benjamin Robert Yackel's motion for a
Franks hearing and his third motion to suppress
evidence obtained during the execution of two search
warrants. The November 29, 2018 R&R recommends denying
Yackel's first motion to suppress evidence, and granting
in part and denying in part Yackel's second motion to
suppress evidence. Yackel timely filed objections to both
R&Rs. For the reasons addressed below, the Court
overrules Yackel's objections and adopts both R&Rs.
Each R&R is addressed in turn.
October 19, 2018 R&R (Dkt. 98)
Cole Peterson of the Minneapolis Police Department obtained
two search warrants on May 28, 2018 as part of a narcotics
investigation involving Yackel. One warrant authorized the
search of Yackel's house and the other warrant authorized
the search of Yackel's person. Each warrant was supported
by an affidavit containing nearly identical facts.
search warrant affidavits stated that Officer Peterson began
investigating Yackel after receiving information from a
“Cooperating Defendant” (CD) that Yackel was
involved in the distribution of large quantities of
methamphetamine from his home in Minneapolis. The CD provided
Yackel's address to Officer Peterson who corroborated it
using property registration and tax records.
affidavits describe a controlled buy between the CD and
Yackel that Officer Peterson arranged. The CD called Yackel,
who directed the CD to come to Yackel's house at the
address that the CD previously provided to Officer Peterson.
Officer Peterson searched the CD before the drug transaction,
verified that the CD did not possess any contraband, and
provided the CD a pre-recorded quantity of “buy
money.” During the controlled-buy transaction, Officer
Peterson and assisting investigators surveilled the area.
After the drug purchase, the CD gave Officer Peterson
“a quantity of methamphetamine which [the CD] indicated
was purchased from [Yackel].” The affidavits summarize
Yackel's criminal history and state that a Hennepin
County Sheriff's Office investigator informed Officer
Peterson that, within the prior 30 days, officers executed a
search warrant at Yackel's house and recovered at least
one firearm. According to the affidavits, the investigator
also represented that federal charges against Yackel were
being brought based on evidence recovered during the
execution of that search warrant.
moves to suppress evidence recovered during the execution of
the two search warrants obtained by Officer Peterson. Yackel
also seeks an evidentiary hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). Alternatively, Yackel
argues that the evidence should be suppressed because the
search warrants were issued without probable cause. The
October 19, 2018 R&R recommends denying both Yackel's
request for a Franks hearing and his motion to
suppress evidence seized pursuant to the search warrants for
lack of probable cause. Yackel objects to both
recommendations of the R&R. The Court reviews each
objection de novo. 28 U.S.C. § 636(b)(1);
accord LR 72.2(b)(3).
contends that a Franks hearing is warranted because
the affidavits contain false and misleading statements, and
he argues that the search warrants were not supported by
probable cause. Yackel first challenges the sufficiency of
the affidavit's description of the controlled buy and
Officer Peterson's interactions with the CD. He next
argues that the affidavits include false and misleading
statements about a firearm recovered during the earlier
execution of a different search warrant and related federal
defendant may challenge the validity of a search conducted
pursuant to a warrant by challenging the veracity of the
affidavit offered in support of probable cause. Franks v.
Delaware, 438 U.S. at 171; see also United States v.
Sundby, 186 F.3d 873, 876 (8th Cir. 1999). A
Franks hearing is warranted when a defendant makes a
“substantial preliminary showing” that (1) a
search warrant affidavit includes a false statement that the
affiant made “knowingly and intentionally, or with
reckless disregard” for whether the statement was true,
and (2) the false statement is “necessary to the
finding of probable cause.” Franks, 438 U.S.
at 155-56. Similarly, a defendant is entitled to a
Franks hearing if he makes a substantial preliminary
showing that information has been omitted from a
search warrant affidavit either to intentionally mislead or
with reckless disregard for whether the omitted facts would
result in a misleading affidavit. See United States v.
Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993). 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).
argues that a Franks hearing is necessary to produce
evidence that the controlled buy actually occurred, a fact
which Yackel denies, and to demonstrate that Yackel has not
faced charges related to any firearm recovered during a prior
search. But Yackel offers no evidence and advances no
argument that undermines the R&R's conclusion that
Yackel failed to make the requisite “substantial
showing” that would entitle him to a Franks
hearing. Instead, Yackel merely “complains” in
his objection to the R&R “that the standard the
Court applies to the threshold Franks question is
impossible to meet.” A bare allegation, without an
offer of proof, fails to meet the requisite preliminary
showing for a Franks hearing. United States v.
El-Alamin, 574 F.3d 915, 925 (8th Cir. 2009).
Yackel's unsupported assertion that the controlled buy
did not occur does not entitle him to a Franks
hearing. As the R&R observes, the detailed search warrant
affidavit contradicts Yackel's allegation. The affidavit
specified Yackel's address, which was corroborated by
Officer Peterson, and describes how the controlled buy was
arranged and surveilled by law enforcement.
provides no argument challenging the R&R's conclusion
that the statements in the affidavit referring to a firearm
and related federal charges are not false or misleading, nor
made with reckless disregard for the truth. And the record
does not show, nor has Yackel argued, that Officer Peterson
falsely stated in the affidavits that an investigator
informed him about a previous search warrant, evidence
recovered, and possible related federal charges.
Yackel fails to make a “substantial preliminary
showing” that the affidavits included intentional or
reckless falsehoods, or that the affidavits omitted facts
either to intentionally mislead or with reckless disregard
for whether the omitted facts would result in a misleading
affidavit, Yackel is not entitled to a Franks