The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
ORDER DENYING FRANCISCO GUTIERREZ'S (6) MOTION TO AND DERIVATIVE EVIDENCE, AND REQUEST FOR A FRANKS (6), HEARING SUPPRESS WIRETAP EVIDENCE [Doc. No. 796.]
Presently before the Court are Defendant Francisco Gutierrez's (6) ("Defendant") motion to suppress wiretap evidence and derivative evidence, and request for a Franks hearing. [Doc. No. 796, Def.'s Mot.] The Government has filed a response in opposition to Defendant's motion. [Doc. No. 808, Govt.'s Response.]
Defendant argues that the interceptions conducted pursuant to the wiretap orders dated February 25, 2011, March 28, 2011, and April 18, 2011were unlawful. [Doc. No. 796-1, Def.'s Mot. at 8.] Defendant presents two main arguments: (1) the affidavits contained material omissions such that a Franks hearing is warranted, and (2) the applications failed to meet the necessity requirement. Therefore, he believes that "[a]ll evidence derived, either directly or indirectly, from these interceptions must be suppressed." [Id.]
"[T]he Fourth Amendment requires that a hearing be held at the defendant's request" "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A defendant may request a hearing for material omissions as well. United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985), modified 769 F.2d 1410 (1985). "In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Franks, 436 U.S. at 156. This procedure also applies to wiretap applications. See United States v. Gonzalez, 412 F.3d 1102, 1111 (9th Cir. 2005).
In Franks, the Supreme Court established a two-prong test for challenging the sufficiency of a warrant affidavit. Franks, 438 U.S. at 155-56. However, "[t]he [Supreme] Court was careful . . . to avoid creating a rule which would make evidentiary hearings into an affiant's veracity commonplace, obtainable on a bare allegation of bad faith. It crafted, therefore, a rule of very limited scope." United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982). "The movant bears the burden of proof and must make a substantial showing to support both elements." Chavez-Miranda, 306 F.3d at 979. If a defendant can make "an adequate initial showing of intentional or reckless material . . . omissions in the wiretap application," the district court should hold a Franks hearing. Gonzalez, 412 F.3d at 1111.
First, a defendant must make a "substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading." Stanert, 762 F.2d at 781. "Clear proof" of a deliberate or reckless omission is not required at this stage. Id. "Given the assumption of validity underlying a supporting affidavit, a party moving for a Franks hearing must submit 'allegations of deliberate falsehood or of a reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.'" United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002) (quoting Franks, 438 U.S. at 171).
Secondly, a defendant must show materiality; that is, "the affidavit . . . supplemented by the omissions would not be sufficient to support a finding of probable cause." Stanert, 762 F.2d at 782 (citing Franks, 438 U.S. at 171-72.) "The effect of the . . . omissions on the existence of probable cause is considered cumulatively." Stanert, 762 F.2d at 782. Omissions are not material if the affidavit provides "sufficient circumstances to have a substantial basis for finding probable cause." United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988).
Defendant alleges that the following facts were omitted from the affidavit: (1) the subscriber of target telephone 7, which was allegedly used by Defendant, was Defendant's wife; (2) the length of time that target telephone 7 had been activated; (3) Defendant had been in custody on the state weapons charge, which was mentioned in the affidavit, from May 4, 2010 until his release on bond on January 27, 2011; and (4) the conditions of Defendant's bond conditions, which included wearing a GPS bracelet to monitor his movements at all times, mandatory monthly drug testing, and once a month home visits by his parole officer. [Doc. No. 796-1, Def.'s Mot. at 10-11.]
Defendant then summarily states that "this pertinent information should have been given to the district court judge charged with the decision to determine if probable cause existed to tap Mr. Gutierrez' [sic] wife's cell phone, and whether the government had demonstrated as to this individual that the necessity prong has been proven so as to permit a wiretap of the phone under Title III." [Id. at 11.] He also states that if "these falsehoods and mis-statements" are excised from the affidavits, the affidavits standing alone "fail to fulfill the requirements of probable cause and necessity." [Id.]
A. First Prong: Affiant Intentionally or Recklessly Omitted Facts
A defendant is required "to make a substantial showing that supports a finding of intent or recklessness." Gonzalez, 412 F.3d at 1111. "[B]are assertion[s] fall short of the preponderance of the evidence that Franks requires." Chavez-Miranda, 306 F.3d at 979. The defendant must provide evidence to support his claim that the omissions were reckless or intentionally misleading. See id. (denying Franks hearing when defendant "offer[ed] no evidence to support the claim that the omissions were reckless or intentionally misleading").
For example, the Ninth Circuit has found the requisite state of mind when the affiant had a "key role in the investigation" such that "he knew or should have known the veracity of the challenged statements in his affidavit because these statements all concerned the potential of traditional investigative techniques to gather information." Gonzalez, 412 F.3d at 1111. The Ninth Circuit also found the requisite state of mind in Stanert, where the affidavit discussed an explosion that happened on the property the government sought to search, but failed to mention that the target individual did not live on the property when the explosion occurred. The Ninth Circuit concluded that the "nondislcosure of the previous ownership of the residence caused the information actually reported to be misleading, and that this nondisclosure was at least reckless." Id. at 781.
Defendant in the present case fails to substantially show that the nondisclosure of the information listed by Defendant in his motion is misleading or reckless. Because Defendant makes only "bare allegation[s] of bad faith," Cheser, 678 F.2d at 1360, the Court finds that Defendant ...