311 F. Supp. 3d 427
D.D.C.2018Background
- In Jan 2014 a confidential informant (CS) gave a signed, transcribed statement that he received four kilos of cocaine delivered to his business at 712 Boston Rd, Springfield; agents seized three kilos from CS.
- DEA agents McGrath and Alberti assisted; Alberti transcribed and CS initialed and swore to the written statement, but a copy was not put into the DEA file nor provided to DEA agent Scott Smith.
- Smith drafted an affidavit asserting CS obtained kilogram quantities at Defendant Roman’s business, TWC Auto Body (56 Jackson St, Holyoke), including the kilos seized in January — a factual link that was contradicted by CS’s written statement.
- The government used the same Smith affidavit for multiple warrants; Magistrate Judge Neiman authorized the warrants and the Holyoke business was searched.
- Roman moved to suppress; the court held a Franks hearing and found (1) CS’s written statement that the drop-off occurred at 712 Boston Rd was accurate, (2) paragraph 54 of the affidavit was false and omitted the written statement, and (3) the cumulative government failures amounted to reckless disregard for the truth.
- The court concluded that, after excising falsehoods and adding the omitted material (the ‘‘reformed affidavit’’), probable cause to search Roman’s business did not exist and granted suppression of evidence from the business search.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Roman) | Held |
|---|---|---|---|
| Whether Franks review can examine conduct beyond the affiant | Court should limit inquiry to affiant’s own knowledge | Franks review may encompass the investigation as a whole when other agents withheld material facts | Court considered the conduct of other agents; Franks inquiry may encompass the investigation, not only the affiant (court followed binding precedent) |
| Whether key affidavit statement (¶54) was false/omitted and whether CS’s written statement was accurate | Initially conceded portion was false as to the seized kilos; later equivocated and argued affidavit was accurate | CS’s written statement (signed/initialed) shows the drop-off occurred at CS’s Springfield business, contradicting affidavit | Court found CS’s written statement accurate and ¶54 false and that the written statement was recklessly omitted from the DEA file and affidavit |
| Whether the government’s errors were intentional, reckless, or mere negligence under Franks | Errors were inadvertent or negligent; not reckless or intentional | Cumulative errors (failure to include/disseminate signed statement, use of single affidavit, misquoting, poor documentation) show reckless disregard | Court found by a preponderance that the combined omissions/misstatements showed reckless disregard for the truth |
| Whether, after removing falsehoods and adding omitted material, the reformed affidavit established probable cause to search TWC Auto Body | Remaining allegations still supported a nexus to the business; a known trafficker’s status supports inference | Without the false ¶54 and with CS’s statement added, no reliable nexus ties criminal evidence to the business | Court held the reformed affidavit failed to establish probable cause to search the business; suppression of fruits of the business search granted |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (defendant entitled to evidentiary hearing if affidavit contains false statements made intentionally or with reckless disregard that are necessary to probable cause)
- Illinois v. Gates, 462 U.S. 213 (1983) (probable cause requires a substantial basis to infer a fair probability that evidence will be found at the location)
- United States v. Arias, 848 F.3d 504 (1st Cir. 2017) (recklessness may be inferred from circumstances showing obvious reasons to doubt allegations; Franks standard applied)
- United States v. Gifford, 727 F.3d 92 (1st Cir. 2013) (recklessness may be inferred where omitted information was critical to the probable cause determination)
- United States v. D'Andrea, 648 F.3d 1 (1st Cir. 2011) (Franks cannot be read to apply only to misrepresentations by the affiant himself; other officers’ conduct can be relevant)
- Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (probable cause requires nexus between criminal activity and the specific place to be searched)