United States District Court, E.D. Missouri, Southeastern Division
REPORT AND RECOMMENDATION
ABBIE CRITES-LEONI, Magistrate Judge.
This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the undersigned is the Defendant's Motion to Suppress Evidence [Doc. 36] seized from his residence and Supplemental Motion to Suppress with Request for a Franks Hearing [Doc. 43]. Eason argues that the search warrant that was executed at his residence was not supported by probable cause, further alleging that there was not a connection between his residence and the illegal conduct that was being investigated. He also requested a Franks hearing based on a claim that the search warrant affidavit contained intentional or reckless falsehoods. Finally, Eason alleges that the executing officers violated Fed.R.Crim. Pro. 41 by failing to give Eason a copy of the search warrant, failing to leave a copy of the inventory of items seized, and not returning the original warrant to the Court. The Government filed responses in opposition to Eason's claims. [Doc. 40, 46]
The Defendant also filed a Motion to Dismiss the Indictment [Doc. 37], to which the Government filed a response [Doc. 39]. Eason claims that the Indictment was not based upon competent evidence, rather it was based on hearsay and evidence that was seized pursuant to a faulty search warrant.
Following an evidentiary hearing [Doc. 47], both parties submitted memoranda. [Docs. 51, 52]
In consideration of the pleadings identified above, as well as all exhibits admitted into evidence, and the Criminal Docket Sheet detailing the documents filed concerning the search warrant for Eason's residence (Case #1:13MJ4076), the undersigned recommends that the following findings of fact and conclusions of law be adopted and that the Defendant's Motion to Suppress Evidence be denied.
I. Findings of Fact
On May 29, 2013, DEA Task Force Officer Alan Nobles applied for a search warrant to search the residence of the Defendant, Marvin Eason. Officer Nobles prepared a fourteen page Affidavit (Gov't. Ex. #1) and attached it to an Application for Search Warrant [Doc. #1, Case #1:13MJ4076LMB], which was presented to United States Magistrate Judge Lewis M. Blanton.
The Affidavit explained that Officer Nobles was seeking a search warrant for a) Eason's residence, as well as b) a clothing business operated by Eason. The investigation regarding Eason and others, led Officer Nobles to believe that evidence of crimes involving the distribution of synthetic cannabinoids would be located at Eason's residence and a clothing business Eason operated with his father. While Eason also worked at a convenience store, no search warrant was sought for that location. Officer Nobles indicated that "[s]ynthetic cannabinoids are substances commonly referred to as "K-2", "spice", and "synthetic marijuana" that contain a chemical compound, which simulates the mental and physical effects of marijuana." Officer Nobles relayed that synthetic marijuana has been deemed a controlled substance under the United States Code.
The contents of Officer Nobles' Affidavit detailed seven separate controlled purchases of K-2 that had been made from Eason with the assistance of a Confidential Source (CS). Officer Nobles provided details for each of the controlled purchases. Three of the controlled purchases occurred inside a convenience store where Eason worked (on October 17, October 26, and November 27, 2012); two additional controlled purchases occurred in the parking lot of the convenience store (on November 28, 2012 and May 1, 2013), another controlled purchase took place at a car wash (April 29, 2013), and the final controlled purchase happened in the garage area of Eason's clothing business (on May 20, 2013). The Affidavit further noted that the CS reported that he observed Eason make a sale of K-2 to an individual while in the convenience store on October 17, 2012.
In addition to the locations of each of the purchases, Officer Nobles detailed the surveillance efforts that took place for each of the controlled purchases. A review of the Affidavit reveals that Eason either went to his residence, or was at his residence prior to engaging in three of the controlled purchases. The surveillance of those transactions is summarized below:
1. On October 17, 2012, when the CS arrived to the convenience store to buy K-2, Eason left the convenience store, drove home, and then returned to the convenience store to make the sale to the CS.
2. On November 28, 2012, the CS did not contact Eason until after he had left work. Eason got in his car at approximately 6:50 p.m. and at 7:07 p.m. the car was observed arriving at Eason's residence, although surveillance officers could not confirm that Eason was the person who got out of the car and went inside the residence. At roughly 7:41 p.m., a person was observed getting back into Eason's car and drove to the convenience store parking lot, arriving there at 7:43 p.m. Eason then exited his car and entered the CS' vehicle. At approximately 7:46 p.m., Eason exited the CS' vehicle, got in his vehicle, departed the parking lot, and arrived back at his home at around 7:48 p.m.
3. On May 1, 2013, Eason had been working at the clothing business and surveillance officers observed him leave at 6:47 p.m.; they followed him to his residence. The CS later contacted Eason by phone and Eason instructed the CS to meet him at the convenience store. At 8:41 p.m., surveillance officers observed Eason exit his residence, get in his car, and then drive the car around to the basement and park; Eason got out of the car, went inside the basement for a short period, and then drove to the convenience store parking lot, arriving there at around 8:52 p.m. Eason then got out of his car and walked up to the driver's side door of the CS' vehicle. After a few minutes, Eason left the CS and walked into the convenience store.
As far as the other four transactions are concerned, the information that was provided concerning where the K-2 came from for each of the sales is as follows: during the two other sales inside the convenience store, Eason pulled the K-2 from his pocket one time and a cardboard box on the floor the other time; during the sale at the car wash, Eason reached into his car for something before conducting the sale; and it is not clear where Eason had the K-2 before selling it to the CS, while in the garage of the clothing business.
During each of the seven aforementioned transactions between Eason and the CS, the CS paid Eason between forty and fifty dollars for quantities of what appeared to be K-2. The Honorable Lewis M. Blanton authorized the search warrant for Eason's residence on May 29, 2013 at 2:12 p.m. (Gov't. Ex. #2) After receiving the original signed search warrant, Officer Nobles made a copy for his file and gave the original to DEA Special Agent Homer Markhart.
The search warrant was executed on June 3, 2013 and numerous items were seized from Eason's residence. Shortly after the officers arrived at Eason's residence, DEA Special Agent Homer Markhart advised Eason of the reason for the search warrant; he also gave Eason the original copy of the warrant. Before the officers left Eason's residence, a receipt listing the items seized (Gov't. Ex. #3) was given to Eason and the officers departed the residence.
The next day, June 4, 2013, the investigating officers determined that a number of items that had been seized should be returned to Eason. Those items included a Nike shoe, a Magellan GPS, and $1, 130. Agent Markhart returned the items to Eason and Eason signed a receipt (Gov't. Ex. #3A), acknowledging that he received the items.
On June 5, 2013, when Officer Nobles was preparing to make the search warrant return to U.S. Magistrate Judge Blanton, the original search warrant could not be found. Officer Nobles communicated with Agent Markhart and learned that Agent Markhart had mistakenly given the original search warrant to Eason when the search warrant was executed. After making this discovery, Agent Markhart contacted Eason to see if Eason would exchange the original search warrant for copies of the search warrant. Eason advised Agent Markhart that he destroyed the search warrants he had been given to prevent his girlfriend from finding out about the searches. Instead of returning the original search warrant to Judge Blanton, Officer Nobles made the return with a copy of the Search Warrant and attached a typed list of the items seized. [Doc. #4, Case #1:13MJ4076LMB] He also submitted an Affidavit prepared by Agent Markhart. (Gov't. Ex. #4) That Affidavit provided an explanation as to what happened to the original copy of the search warrant. [Doc. #5, Case #1:13MJ4076LMB]
Eason testified that he was not shown or given a copy of the search warrant on June 3, 2013; he did not possess K-2, nor does he mess with drugs; he was never involved in selling K-2; he had no knowledge that any drugs were in his house; he did not know about the gun in his house; and Agent Markhart did not contact him about recovering a copy of the original search warrant. Eason's testimony was not credible. Both Officer Nobles and Agent Markhart testified that when the officers first arrived with the search warrant, Eason was "very verbally combative" and claimed that the search warrant was not valid. Once Eason calmed down, Agent Markhart read the warrant to Eason. Quite a few officers were present when the search warrant was read. Officer Nobles was not in the same room as Eason and Agent Markhart when the warrant was read, but Officer Nobles could hear the warrant being read while in another room of the residence. When the search was complete, Agent Markhart left a receipt listing the items seized with Eason; another DEA Special Agent signed the receipt as a witness. Furthermore, law enforcement officers clearly documented that seven controlled purchases of K-2 were made from Eason. The undersigned rejects the testimony of Eason as being untruthful and accepts the testimony of the officers.
II. Conclusions of Law
A. Inaccurate Statements in Search Warrant Affidavit did not require Franks hearing.
The Defendant challenges the validity of the search warrant under the rationale of Franks v. Delaware, 438 U.S. 154 (1978). In particular, Eason alleges that the second sentence of paragraph three of the Affidavit is intentionally false. [Doc. 43 at 2] The sentence in question, provided, "Additionally, during this time period EASON was seen providing customers with quantities of synthetic cannabinoids at locations other than hi[s] business; EASON was observed leaving his residence prior to each sale."
To succeed in a Franks type challenge to the validity of the search warrant, the Defendant must establish that the affiant either knowingly and willfully or with reckless disregard for the truth, included a false statement within the warrant affidavit. Mere negligence or innocent ...