ORDER RE: MOTION TO SUPPRESS
On September 16, 2008, evidence was seized from the home of defendant Tony Quy Le ("Tony Le") at 4080 Monteverde in Lincoln, California, pursuant to a search warrant. Tony Le now moves to suppress that evidence, arguing that the warrant was not supported by probable cause and that the affidavit in support of the warrant was so lacking in indicia of probable cause that official belief in its existence was objectively unreasonable. He also moves to suppress evidence seized pursuant to a warrant from 9335 Stablegate Road in Wilton, California, on the ground that the discovery necessarily flowed from the allegedly defective September 16, 2008, search, and is thus the fruit of the poisonous tree. On January 4, 2011, the court held a Franks*fn1 evidentiary hearing on the motion.
The following facts are undisputed and are taken from the affidavit in support of the application for the search warrant at issue, signed by Drug Enforcement Agency ("DEA") Special Agent Spencer Savage, and from Agent Savage's testimony at the hearing.
On August 3, 2007, officers from the Placer County Sheriff's Office executed a search warrant at 20995 Todd Valley Road in Foresthill, California. The search resulted in the seizure of approximately 1153 marijuana plants, among other pieces of evidence. Real estate records showed that Tony Le, a realtor, represented the owner in purchasing the home in 2007. Further investigation disclosed that Tony Le acted as the buyer's agent in the purchases of residences at 1640 High Street and 1740 High Street in Auburn, California. The purchasers were Hung The Le and Tien The Le, respectively. Four days after the search of the Todd Valley residence, which was owned by Tien The Le's wife, he transferred ownership of the 1740 High Street property to Mui Nhi Ly, his parent.
On August 22, 2007, the Auburn Police Department initiated an investigation on a suspected indoor marijuana-growing operation located at the High Street residences.
Officers smelled a strong odor of marijuana while standing on the sidewalk outside the 1640 High Street residence. They discussed the matter with two concerned citizens, who reported seeing several vehicles at both locations and had observed a Toyota Tacoma delivering lumber, PVC pipes, and soil to the 1640 High Street residence. The citizens also reported hearing construction noises akin to hammering and sawing, and noticed that the basement vents had been covered. On August 28, 2007, officers observed Tony Le leaving the 1640 High Street property in his car. The officers performed a traffic stop for a mechanical violation, and then followed Tony Le back to his home at 4080 Monteverde Drive in Lincoln, California. Officers saw the same car depart the 1640 High Street property on September 9, 2007. Tony Le was observed at least one or two more times at the High Street properties.
On September 19, 2007, officers responded to a possible burglary in progress at 1740 High Street. While inside the residence attempting to locate the suspect, officers observed construction, timers, and power boxes consistent with the materials found in an indoor marijuana-growing operation.
On September 25, 2007, the Auburn Police Department executed a state-authorized search warrant at 1640 High Street, in which they located an indoor marijuana-growing operation nearly identical to the operation at the Todd Valley residence. They seized approximately 911 viable marijuana plants.
Tony Le also represented Kun A. Lo in purchasing a residence at 349 Arches Avenue in El Dorado Hills, California, which was suspected to contain indoor marijuana-growing operations. All of the homes purchased with the help of Tony Le had characteristics common to marijuana grow houses: they were built on a declining hill, had large unfinished basements not readily accessible from the front of the residence, and could "easily avoid police detection."
Based on this information, the government obtained a federal search warrant to search eight homes, including the Arches Avenue property and Tony Le's residence on Monteverde. The residences were described as "locations owned and operated as suspected indoor marijuana grows, or the current residences of those individuals involved in tending the indoor marijuana grow operations." On September 16, 2008, law enforcement agents executed the search warrant. Evidence seized from the search at the Monteverde residence included cash, cell phones, and documents, including documents associated with hydroponic equipment and a nutrient schedule. Also seized were records pertaining to ownership of property at 9335 Stablegate Road in Wilton, California. Discrepancies in the records led agents to begin surveillance on the property. Agents observed Tony Le drive into the driveway of the property on October 15, 2008. A search warrant was issued for the property, and approximately 1,031 marijuana plants were seized.
Tony Le now moves to suppress evidence from both of the searches. He argues that the Monteverde search warrant was not issued with probable cause and that Special Agent Savage deliberately or recklessly omitted material facts from the affidavit. He does not argue that the Stablegate warrant was issued without probable cause, but instead argues that the evidence should be suppressed because it constitutes fruit of the poisonous tree.
On January 4, 2011, the court held a Franks hearing to determine whether Special Agent Savage made deliberately or recklessly false statements or omissions in the warrant affidavit. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that if, after hearing, a defendant establishes by a preponderance of the evidence that a false statement was made by the affiant in an affidavit in support of a search warrant, and that the statement was made knowingly and intentionally or with reckless disregard for the truth, the court should set the false material aside and determine whether "the affidavit's remaining content is insufficient to establish probable cause," id. at 155-56, meaning that the "false statement was necessary to the magistrate's finding of probable cause." United States v. Tham, 960 F.2d 1391, ...