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United States v. Yackel

United States District Court, D. Minnesota

January 28, 2019

United States of America, Plaintiff,
v.
Benjamin Robert Yackel (3), Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          Wilhelmina M. Wright United States District Judge

         This 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.

         I. October 19, 2018 R&R (Dkt. 98)

         Officer 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.

         The 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.

         The 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.

         Analysis

         Yackel 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).

         A. Franks Hearing

         Yackel 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 charges.

         A 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).

         Yackel 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.

         Yackel 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.

         Because 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 hearing.

         B. Pr ...


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