Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA,
Plaintiff, Cr. No. 19-2321 JAP v.
DECARRIO RICHARDSON,
Defendant.
MEMORANDUM OPINION AND ORDER
On January 20, 2020, Defendant Decarrio Richardson filed a MOTION TO SUPPRESS EVIDENCE OR, IN THE ALTERNATIVE, TO HOLD A FRANKS HEARING (“Motion”) (Doc. 49). The Motion is fully briefed. See UNITED STATES’ RESPONSE TO DEFENDANT’S MOTIONS TO SUPPRESS ALL EVIDENCE OBTAINED THROUGH THE EXECUTION OF THE STATE SEARCH WARRANT OR ALTERNATIVELY TO HOLD A FRANKS HEARING (Doc. 75); REPLY IN SUPPORT OF DEFENDANT’S MOTION TO SUPPRESS EVIDENCE OR, IN THE ALTERNATIVE, TO HOLD A FRANKS HEARING (Doc. 84). Defendant raises various arguments challenging the search warrant that authorized a search of his residence and the search warrant’s supporting affidavit. Doc. 49 at 1–2. The Court has determined that a hearing is unnecessary for the resolution of this Motion. For the reasons below, the Court will deny Defendant’s Motion.
BACKGROUND On April 10, 2018, a New Mexico District Court Judge issued a warrant for the search of the “persons and/or place described in the Affidavit.” Doc. 74-1. Relevant to this Motion, the attached affidavit prepared by Bernalillo County Sherriff’s Office Detective J. Koppman described in detail that
[t]he residence to be searched is located in the City of Albuquerque, County of Bernalillo, and State of New Mexico. The residence is located at 221 Moon NE Albuquerque, NM 87123. at 2. The affidavit also detailed Detective Koppman’s investigation. It explained that
[d]uring the first week of April 2018 Affiant spoke with a Confidential Source (herein referred to as CS). The CS stated that it had first hand, personal knowledge of a male subject by the name of Decarrio Richardson, AKA “Black” who is actively and continuously selling cocaine and crаck cocaine out of his residence, located at 221 Moon NE. The CS stated that it has been to Richardson’s residence on numerous occasions for the purpose of purchasing cocaine and crack-cocaine. According to the CS, it would meet with Decarrio Richardson at his residence, located at 221 Moon NE and provide him with an amount of money (U.S. currency) and in return, Richardson would provide IT with an amount of cocaine or crack- cocaine. The CS stated Richardson will also have IT meet at predetermined locations to conduct the narcotics transactions, as well. The CS stated Richardson will either arrive in his black Audi or white BMW to complete the transactions. Affiant located a Decarrio Monte Richardson (7/16/1985) in a law enforcement data base. Affiant showed the CS a picture of that subject and the CS positively identified him as the Decarrio Richardson, that sells IT cocaine and crack cocaine. The CS added that Richardson is a member of the street gang, Memphis Mob. The CS stated Richardson is always armed with firearms. The CS stated IT has observed Richardson with an uzi, a .380 and a 9mm pistol. The CS stated Richardson keeps his narcotics, money and firearms inside of a black backpack. The CS stated IT has also observed Richardson with a pistol wedged between the front seat and center console, as well as on the front, passenger floorboard of his vehicle.
The CS directed affiant to 221 Moon NE and identified the location as the residence that Decarrio Richardson sells narcotics out of.
Affiant conducted a data base search on Decarrio Richardson (711611985) and found that he has multiple felony arrests and multiple felony convictions for trafficking narcotics. As a convicted felon, Richardson should not be in possession of any firearms.
During the second week of April the CS met up with detectives and agreed to assist affiant with a controlled purchase of narcotics. The CS called Richardson on the phonе and asked if IT could purchase some crack. Richardson agreed to sell IT crack and instructed IT to go to a predetermined location. The CS was searched for weapons and narcotics. None were found. The CS went to the predetermined location and met with Richardson, who was in a black Audi, with chrome custom rims and a temporary registration tag. The CS returned to Affiant and presented a quantity of crack-cocaine. The CS was searched for other narcotics and weapons. None were found. The crack-cocaine was field tested with a NIK test kit, which yielded a presumptive positive result for cocaine.
Affiant states that the CS has provided detectives with information regarding people involved in Narcotics activities and of persons who have been arrested for Narcotics activities. This information has been corroborated by detectives. The information supplied by the CS is believed to be true and correct. The CS has never given detectives information that has proved to be false. The CS is aware that supplying any false or misleading information to the detectives could lead to criminal charges being filed or could void all other agreements made between It and the detectives, as a member of the Bernalillo County Sheriff’s Department. The CS is familiar with the appearance of Narcotics and the methods by which they are sold, and used. The CS is cooperating with detectives in lieu of prosecution of criminal charges.
Within the past twenty-four (24) hours, Affiant spoke with CS. The CS stated Decarrio Monte Richardson is still actively and сontinuously selling cocaine and crack-cocaine out of his residence. at 4–7.
On April 11, 2018, law enforcement officers searched Defendant’s residence and found firearms and ammunition. [1] In July 2019, a federal grand jury returned an indictment charging Defendant with: Count 1, possessing with intent to distribute 500 grams and more of cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B); Count 2, being a felon in possession of a firearm and ammunition, see 18 U.S.C. §§ 922(g)(1), 924(a)(2); and Count 3, using and carrying a firearm during and in relation to a drug trafficking crime and possessing a firearm in furtherance of such crime, see 18 U.S.C. § 924(c)(1)(A)(i). See INDICTMENT (Doc. 33).
Defendant now moves to suppress evidence discovered as a result of the search of his residence or, in the alternative, to hold a Franks hearing on the grounds that: (1) the search warrant was not supported by probable cause, and (2) the affidavit supporting the search warrant contained material omissions and false or misleading statements, and the deficiency was such that the warrant could not be relied on in good faith. Doc. 49 at 2.
DISCUSSION I. Probable cause
Defendant asserts that the search warrant was not supported by probable cause because: (1) the affidavit lacked a nexus between the location to be searched and criminal activity; (2) the search warrant was stale when executed; аnd (3) the affidavit did not lay out the CS’s veracity, reliability, and basis of knowledge. Doc. 49 at 5–9.
The Fourth Amendment provides that “no [w]arrants shall issue, but upon probable cause.”
U.S. Const. amend. IV. “[P]robable cause to issue a search warrant . . . exists when the supporting
affidavit sets forth sufficient facts that would lead a prudent person to believe that a search of the
described premises would uncover contraband or evidence of a crime.”
United States v. Rowland
,
a. Nexus requirement
“Probable cause undoubtedly requires a nexus between suspected criminal activity and the
place to be searched.”
United States v. Corral-Corral
,
Defendant contends that the search warrant and supporting affidavit fail to establish a nexus between criminal activity and his residence at 221 Moon St. NE. See Doc. 49 at 5. He points to the affidavit which recounts that “[t]he CS states that it has been to Richardson’s residence on numerous occasions for the purpose of purchasing cocaine and crack-cocaine.” Doc. 74-1 at 4. He then claims “[t]here is no indication when the CS was last at Mr. Richardson’s home nor any other details supplied as to where the drugs were located or where the drugs were last seen at the residence.” Doc. 49 at 6. According to Defendant, without more information, the affidavit “failed to establish a nexus between the residence to be searched and evidence of contraband at the home at the time of the search warrant.” Id.
Defendant’s argument omits key details from the affidavit that sufficiently detail a nexus between Defendant’s residence and his suspected criminal activities. For example, the CS reported first-hand knowledge of Defendant selling drugs out of his residence. Doc. 74-1 at 4. The CS knew this bеcause it had purchased cocaine and crack-cocaine from Defendant at his residence. Because of its knowledge, the CS was also able to provide Detective Koppman Defendant’s address: 221 Moon St. NE. Id. Further, the CS informed Detective Koppman that Defendant was selling cocaine and crack-cocaine from his home within 24 hours of application for the search warrant. at 5. All that information, which is detailed in the search warrant affidavit, provides a sufficient nexus between Defendant’s residence and the alleged criminal activity.
Defendant also argues that the affidavit was “replete with repetitive and tenuous facts [and
thus] d[id] not provide a magistrate with a sufficient basis for drawing a reasonable inference that
a search would uncover evidence of criminal activity.” Doc 49 at 7 (quoting
Danhauer
, 229 F.3d
at 1006). In
Danhaur
, the Tenth Circuit was concerned with a warrant that contained repetitive
facts about the “physical description of the Danhauer residence and the identity of the occupants.”
Danhauer
,
Given the totality of the circumstances, the Court concludes that the search warrant and supporting affidavit provided a nexus between suspected criminal activity аnd Defendant’s residence.
b. Staleness Defendant briefly argues that the search warrant was stale when executed. Doc. 49 at 6. He directs the Court to the same statement from the affidavit on which he relied for his nexus argument—“The CS states that it has been to Richardson’s residence on numerous occasions for the purpose of purchasing cocaine and crack-cocaine.” ; Doc. 74-1 аt 4. Defendant then asserts that “[w]ithout more information from the CS or the independent police investigation, the information in the affidavit was stale[.]” Doc. 49 at 6.
“[P]robable cause to search cannot be based on stale information that no longer suggests
that the items sought will be found in the place to be searched.”
United States v. Mathis,
357 F.3d
1200, 1206–07 (10th Cir. 2004). “[W]hether information is too stale to establish probable cause
depends on thе nature of the criminal activity, the length of the activity, and the nature of the
property to be seized.” at 1207 (quotation omitted). “As is only logical, ongoing and continuous
activity makes the passage of time less critical when judging the staleness of information upon
which a search warrant is based, because evidence of a longstanding pattern of repeated activity
makes it less likely that the activity has ceased within a short time frame.”
United States v. Roach
,
The search warrant affidavit provides that “[w]ithin the past twenty-four (24) hours, Affiant spoke with the CS. The CS stated that Decarrio Monte Richardson is still actively and continuously selling cocaine and crack-cocaine out of his residence.” Doc. 74-1 at 5. Given the “ongoing and continuous nature” of Defendant’s alleged drug trafficking and the CS’s confirmation that that activity continued within 24 hours of the search warrant affidavit, the information contained in the search warrant was not stale.
c. Veracity, reliability, and basis of knowledge
Defendant next argues that the search warrant affidavit does not establish the veracity,
reliability, and basis of knowledge of the CS. Doc. 49 at 8. A probable cause determination
includes an examination of the veracity, reliability, and basis of knowledge of the informant.
See
United States v. Campbell
,
In Campbell , the Tenth Circuit concluded that the search warrant affidavit provided sufficient detail about a CS’s reliability, veracity, and basis of knowledge. The court explained: The affidavit states he admitted to being present when Defendant shot Barney. “[A] firsthand observation is entitled to greater weight than secondhand information.” [ United States v. Quezada-Enriquez , 567 F.3d 1228, 1233 (10th Cir. 2009)]. Furthermore, thе affidavit also states CW # 3 is a documented NHC street gang member, which Defendant does not dispute, and has “personal knowledge” of the facts in his statements to the WPD based upon his direct conversations with members and associates of the NHC, his observations of members and associates of the NHC, and his admitted participation in some of the NHC’s criminal activities which he describes. It fully discloses the fact CW # 3 dеsired a lower sentence in a separate criminal case in exchange for his cooperation, but had not yet been provided a benefit for his cooperation. And, though the affidavit did not provide specifically how law enforcement verified or deemed reliable CW # 3’s statement that Defendant killed Barney, it did represent that much of CW # 3’s “information has been verified and deemed reliable through independent investigation such as police reports, recorded conversations, letters, interviews, telephone records, surveillance, undercover narcotics purchases and evidence recovered in the execution of search warrants.” ROA, vol.1, pt.2, at 303.
Here, the affidavit provides sufficient information about the veracity, reliability, and basis
of the CS’s knowledge to support the issuing judge’s determination of probable cause. Like in
Campbell
, the CS had first-hand knowledge of Defendant’s drug trafficking activities, because the
CS had purchased cocaine and crack-cocaine from Defendant in the past. Doc. 74-1 at 4. As the
Tenth Circuit explained, “a firsthand observation is entitled to greater weight than secondhand
information.”
Quezada–Enriquez,
II. Franks hearing
Under
Franks v. Delaware
,
Defendant argues that the affidavit prepared by Detective Koppman contained material omissions and false or misleading statements, and that deficiency was such that the warrant could not be relied upon in good faith. Doc. 49 at 10–17. In particular, Defendant points to the following language from the affidavit:
Affiant states that the CS has provided detectives with information regarding people involved in Narcotics activities and of persons who have been arrested for Narcotics activities. This information has been corroborated by detectives. The information supplied by the CS is believed to be true and correct. The CS has never given detectives information that has proved to be false. The CS is aware that supplying any false or misleading information to the detectives could lead to criminal charges being filed or could void all other agreements made between It and the detectives, as a member of the Bernalillo County Sheriff's Department. The CS is familiar with the appearance of Narcotics and the methods by which they are sold, and used. The CS is cooperating with detectives in lieu of prosecution оf criminal charges.
Doc. 74-1 at 6–7. He again directs the Court to the seven search warrant affidavits attached to the Motion, where Defendant Koppman used very similar statements to describe his confidential sources. Defendant suggests that part of the affidavit must be false because Detective Koppman simply inserted “boiler plate” language.
Defendant, however, does not actually make a substantial showing that Detective Koppman’s statements about the CS were recklessly or intentionally false in this case. Instead, Defendant speculates that because Detective Koppman has used similar language in other search warrant affidavits, the statements here cannot be trusted. But wholly speculative allegations are insufficient to support a Franks hearing. See, e.g. , United States v. Long , 774 F.3d 653, 662 (10th Cir. 2014) (“What is notably missing from this argument is any evidence that the allegations of the affidavit are false. It consists solely of speculation that if the affidavit were true, the police would have conducted further investigation . . . .” (emphasis in original)). A conclusory allegation that a statement must be false, accompanied by no offer of proof, is insufficient to meet the standard for a Franks hearing. See Franks , 438 U.S. at 171 (“There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.”). Because Defendant fails to make a substantial showing that the information contained in the search warrant affidavit is false, the Court will deny his request for a Franks hearing.
IT IS THEREFORE ORDERED THAT Defendant’s MOTION TO SUPPRESS EVIDENCE, OR, IN THE ALTERNATIVE, TO HOLD A FRANKS HEARING (Doc. 49) is DENIED.
________________________________________ SENIOR UNITED STATES DISTRICT JUDGE
Notes
[1] Law enforcement officers also searched Defendant’s black Audi, which is the subject of a different suppression motion filed by Defendant. See MOTION TO SUPPRESS (Doc. 48). The Court has a hearing on that Motion to Suppress on May 14, 2020.