The opinion of the court was delivered by: Marilyn Hall Patel Chief Judge United States District Court Northern District of California
MEMORANDUM AND ORDER re Motion to Suppress Evidence
Defendant Aisha McCain has been charged with conspiracy and violations of federal drug and weapons laws. During the course of their investigation, police searched McCain's apartment pursuant to a state search warrant and seized drug packaging equipment as well as a significant quantity of crack cocaine. McCain now challenges issuance of the warrant on grounds that the warrant affidavit mislead the issuing magistrate by describing information derived from a federal wiretap in a manner that suggested the information came from an informant's firsthand observations. Having considered the arguments and submissions of the parties, and for the reasons set forth below, the court rules as follows.
On August 9, 2001, at approximately 3:00 pm, police executed a search warrant at the apartment of Aisha McCain at 358 Alida Way #44 in South San Francisco, California. Hanley Dec., Exh. I. During the search police seized seventeen separate plastic bags containing a total of approximately sixteen ounces (or approximately 450 grams) of crack cocaine, as well as a 'kilogram press' and a 'can top press' used to package cocaine for distribution and sale, and metal and glass kitchenware used to 'cook' powder cocaine into crack cocaine. Id.; Bevan Dec., Exh. at 125. Officers found residue suspected to be cocaine and cocaine base on the kitchenware and on kitchen countertops. Hanley Dec., Exh. I. Residue on the countertops field-tested positive for cocaine. Id.
The warrant to search McCain's apartment was issued by California Superior Court Judge Patrick Mahoney. Id., Exh. C. Inspector Matt Hanley of the San Francisco Police Department provided the affidavit in support of the warrant application. Id. In the warrant affidavit, Inspector Hanley stated that he had "obtained information derived from a confidential reliable source (hereinafter 'CRS') that Aisha McCain is a cocaine dealer who sells cocaine base (crack cocaine) in the San Francisco area." Warrant Affidavit, Hanley Dec., Exh. C. ("Warrant Affidavit"). Inspector Hanley described how the CRS had provided truthful information in the prior two months "which led to the arrest of one cocaine base dealer and the seizure of 102.83 grams of cocaine base . . . and the seizure of one firearm. The CRS has provided law enforcement with truthful information in the past two months which has been corroborated by investigation" Id.
Inspector Hanley continued to describe the facts which he believed would support a finding of probable cause to search McCain's apartment:
According to the CRS, McCain is currently involved in the storing of narcotics, and delivery/transport of cocaine on behalf of one or more narcotics traffickers in the San Francisco area. . . . . . . Within the time frame referenced above . . . , law enforcement surveillance observed a known cocaine trafficker who is known to the CRS to have a narcotics relationship to Aisha McCain enter and exit the apartment complex on foot. Most recently, on the evening of August 8, 2001, law enforcement surveillance observed the vehicle known to be driven by this cocaine trafficker, parked in front of this apartment complex. The trafficker himself was not observed on this occasion, only his vehicle.
I have further learned through the CRS that this cocaine trafficker and Aisha McCain communicate with each other on a regular basis about matters involving their narcotics activity, including storing narcotics at her residence in this apartment complex. According to the CRS, McCain has stored cocaine inside her residence on more than one occasion during this time frame, and on at least one occasion, this narcotics trafficker himself may have brought the cocaine into the apartment.
Id. Besides the information "derived from" the CRS, Inspector Hanley's affidavit contained only statements which described McCain's criminal history, described police observations of the car driven by McCain, and described police observation of McCain parking at her apartment complex. The affidavit also contained boilerplate language describing Inspector Hanley's training and his experience that narcotics traffickers often store narcotics at their residences. Id.
The government readily admits that the 'Confidential Reliable Source' described in the affidavit was not a human informant but a federally authorized wiretap of the cellular phone of co-defendant Douglas Stepney. Bevan Dec. ¶ 8; Hanley Dec. ¶¶ 3(b), (d), (e), (f). The government explains that its purpose in so describing the wiretap was not to mislead the issuing magistrate, but to protect the confidentiality of the federal wiretap so as not to compromise the ongoing investigation. Bevan Dec. ¶ 8; see also id. ¶¶ 5, 6(d) (describing need to protect confidentiality of wiretap generally). The wiretaps in the case remained active until August 31, 2001, about three weeks after the execution of the warrant to search McCain's apartment. Id. ¶ 4.
Inspector Hanley states that he does not recall whether he orally disclosed the wiretap to Judge Mahoney. Hanley Dec. ¶ 14. To the best of Hanley's knowledge, Judge Mahoney asked no questions about either the warrant or the affidavit before signing the warrant. Id. ¶ 3(f). Inspector Hanley further states that on June 13, 2003, he met with Judge Mahoney and asked him whether he recalled disclosure of the wiretap during the course of his review of the affidavit, and that Judge Mahoney had no recollection of the search warrant. Id.
In a declaration filed in opposition to McCain's present motion, Inspector Hanley states that he was familiar with the contents of the calls intercepted on the wiretap, that he "listened to tapes of pertinent calls," and that he read reports which quoted excerpts of the calls. Hanley Dec. ¶ 4(g). He also stated, "I cannot say with certainty that I was aware of each and every one of these calls in Exhibit B. However, I was familiar with content of wiretap calls . . . that bore out each summary in the Affidavit of the information derived from the wiretap." Id. ¶ 4(h). Exhibit B to his declaration includes the transcripts of calls which the government maintains provide probable cause.
A defendant may challenge a search conducted pursuant to a warrant on grounds that the warrant affidavit, while facially adequate to support a finding probable cause, contained misstatements of fact or omissions which affected the issuing magistrate's determination. Franks v. Delaware, 438 U.S. 154 (1978). A warrant may also be held invalid where the affiant has "intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading." United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir. 1988) (omissions), cert. denied, 489 U.S. 1084 (1989) (quoting United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985)). Under Franks, a defendant must satisfy a two-part showing in order for a court to find a search warrant invalid and exclude the fruits of the search.*fn1 First, the defendant must show that the affiant's statement or omission was either intentionally false or misleading or demonstrated reckless disregard of the truth. Franks, 438 U.S. at 155--56; United States v. Jordan, 291 F.3d 1091, 1100 (9th Cir. ...