Opinion
Criminal Action No. 04-15 Section: "R".
February 17, 2005
ORDER AND REASONS
The defendant, Alfred Flowers, moves the Court for an evidentiary hearing and to suppress all evidence taken from his person. For the following reasons, the Court DENIES the defendant's motion.
I. BACKGROUND
Alfred Flowers and Norman Williams were indicted for bank robbery. Specifically, the government alleges that Flowers and Williams entered the Louisiana Capitol Federal Credit Union in Hammond, Louisiana on January 15, 1999 wearing ski masks. The government further alleges that Flowers controlled the lobby while Williams took money from a teller. On July 11, 2003, the government applied for a search warrant seeking body hairs, skin cells, saliva, and palm prints from Flowers. In support of the application, the government submitted a three-page sworn affidavit from FBI Special Agent David Riker. After reviewing the application and affidavit, Magistrate Judge Wilkinson approved and signed the warrant.
On December 21, 2004, Flowers moved the Court for an evidentiary hearing and to suppress the evidence gathered in the search of his person. Flowers contends that SA Riker omitted exculpatory information from the affidavit that was critical to a finding of probable cause. Flowers argues that in the context of the omitted information, SA Riker's affidavit is insufficient to establish probable cause. The Court held oral argument on Flowers' motion on February 15, 2005. After considering the parties' briefs and argument, the Court denies the motion.
II. DISCUSSION
A. Law
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that criminal defendants have a limited right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual statements made in an affidavit supporting a search warrant. Franks, 438 U.S. at 155-56. The Franks rule is of "limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be accorded." Id. at 167. Significantly, under Franks "[t]here is . . . a presumption of validity with respect to the affidavit supporting the search warrant." Id. at 171. Therefore, in order to receive an evidentiary hearing on suppression, a defendant who attacks the validity of an affidavit supporting a search warrant must make a "substantial preliminary showing" that (1) the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in the warrant affidavit, and (2) the remaining portion of the affidavit is insufficient to support a finding of probable cause. Id. at 171; see also, United States v. Dickey, 102 F.3d 157, 161-62 (5th Cir. 1996).
The Court spelled out in some detail what it meant by a "substantial preliminary showing:"
To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. 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. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.Id. at 171-72. The "substantial preliminary showing" requirement is not lightly met. See U.S. v. Cleveland, 964 F.Supp. 1073, 1077 (E.D. La. 1997). Furthermore, even if the defendant makes the requisite substantial preliminary showing for an evidentiary hearing, suppression is still not mandated unless the defendant establishes at the hearing, by a preponderance of evidence, that the misstatements in question were made intentionally or with reckless disregard for the truth and that, with the false statement omitted, probable cause was lacking. Franks, 438 U.S. at 156.
The Franks holding has been extended to cover alleged omissions in a supporting affidavit, as well as false statements. See United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995). Courts have noted, however, that while omissions are not exempt from inquiry under Franks, affidavits that contain omissions of potentially exculpatory information are less likely to present a question of impermissible official conduct than those that affirmatively include false information. See Cleveland, 964 F.Supp. at 1077. To receive an evidentiary hearing in a case involving an omission, a defendant must make a substantial preliminary showing that (1) the affiant made the omission intentionally and/or with reckless disregard for the omission's tendency to mislead, and (2) there would not have been probable cause if the affiant had included the omitted material in the supporting affidavit. Id. at 1077-78. "`Unless the defendant makes a strong preliminary showing that the affiant excluded critical information from the affidavit with the intent to mislead the magistrate, the Fourth Amendment provides no basis for a subsequent attack on the affidavit's integrity.'" Tomblin, 46 F.3d at 1377 (quoting U.S. v. Colkley, 899 F.2d 297, 303 (4th Cir. 1990)). Significantly, "[a]llegations of negligence or innocent mistake are insufficient." U.S. v. Ludwig, 902 F.Supp. 121, 125 (W.D. Tex. 1995).
The Fifth Circuit has acknowledged that "it will often be difficult for an accused to prove that an omission was made intentionally or with reckless disregard rather than negligently unless he has somehow gained independent evidence that the affiant had acted from bad motive or recklessly in conducting his investigation and making the affidavit." United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). For this reason, the Fifth Circuit has recognized that "when the facts omitted from the affidavit are clearly critical to a finding of probable cause the fact of recklessness may be inferred from proof of the omission itself." Id. (emphasis added). See also, United States v. Cronan, 937 F.2d 163, 165 (5th Cir. 1991); Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990) (same); United States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982). Thus, under Fifth Circuit law, the Court can infer recklessness if the materiality of the omission is great enough. In such cases, the analytical concepts of materiality and recklessness are "bound together," collapsing the dual inquiry of Franks into a single inquiry into materiality. Namer, 680 F.2d at 1094. The Court will infer reckless intent only in extreme cases when the materiality of the omitted material is "clearly critical" to the probable cause determination. Cleveland, 964 F.Supp. at 1078.
B. Discussion
(1) SA Riker's Affidavit
In his affidavit, SA Riker stated that he learned from other FBI special agents that two black males robbed Louisiana Capitol at gunpoint on January 15, 1999. (Def.'s Ex. B.) Specifically, the other special agents interviewed Louisiana Capitol employees and reported that the two men wore black stocking masks. ( Id.) One robber, taller and heavier than the other and wearing a green baseball cap, controlled the lobby. ( Id.) The other robber collected the cash from behind the teller's counter and placed it into a duffel bag. ( Id.)
On January 19, 1999, the Tangipahoa Parish Sheriff's Office (TPSO) informed SA Riker that Detective Connie Dotey, a black female, was at the Louisiana Capitol drive-in window when the drive-in teller mouthed to her, "I think we are being robbed." ( Id.) Dotey then saw the teller put her hands in the air. ( Id.) Dotey pulled her vehicle forward and observed the shorter, slender robber get into the driver's seat of a Toyota Camry. ( Id.) The taller, heavier robber was in the passenger's seat. ( Id.) Both of the men were black and neither was wearing a mask. ( Id.) Dotey followed the Camry a few blocks. ( Id.) The Camry stopped, and the passenger exited the vehicle and entered a Dodge Intrepid bearing the Louisiana license plate A551414. ( Id.) The men drove the cars about a block, and then the driver of the Camry got out carrying a blue duffel bag. ( Id.) He entered the passenger side of the Intrepid and the Intrepid pulled away. ( Id.) Dotey was unable to continue surveillance after that. ( Id.)
On January 15, 1999, a Hammond Police Department representative informed SA Riker that a black stocking mask containing hairs that appeared to be from a black male was recovered from the bank parking lot near the spot where the Camry had been parked. ( Id.) A Louisiana State Trooper informed SA Riker that he found latent fingerprints inside the Camry and on a plastic bag that was inside the Camry. ( Id.) Furthermore, the State Trooper found five latent fingerprints inside the door to Louisiana Capitol. ( Id.)
On or about January 16, 1999, SA Glenn J. Methvin informed SA Riker that Aleem Suluki, the owner of Suluki Car Care, rented the Dodge Intrepid used in the robbery from Enterprise Rent-A-Car on January 7, 1999. ( Id.) Suluki returned the car to Enterprise on January 18, 1999 and paid cash for the rental. ( Id.) SA Methvin further informed SA Riker that Bobby Marble, an Enterprise employee, identified a photograph of Norman Williams as the person who accompanied Suluki when he returned the car. ( Id.) According to Marble, Williams took a gray duffel bag from the Intrepid and placed it in the red Ford Explorer in which the two men left. ( Id.)
On January 21, 1999, Suluki advised SA Riker that that he rented the Intrepid from Enterprise on or about January 7, 1999 for Alfred Flowers because Suluki was repairing Flowers' car. ( Id.) The Intrepid was supposed to be returned on January 16, 1999. ( Id.) When Suluki called Flowers about the car, Flowers informed him that Norman Williams had it. ( Id.) Williams returned the Intrepid to Suluki on January 18, 1999 and followed Suluki to enterprise where Suluki returned the Intrepid. ( Id.) Suluki returned Flowers' Buick Skylark to him on January 16, 1999, and Flowers wired Suluki $1,060.00 for the repairs. ( Id.)
On March 5, 2001, SA Riker interviewed James Tasco, an inmate of the Federal Correctional Institution in Oakdale, Louisiana. ( Id.) Tasco served time in the 1970's with Flowers at the Angola State Prison. ( Id.) He claimed to have committed approximately four bank robberies with Flowers and approximately 15 bank robberies with Williams. ( Id.) Tasco informed SA Riker that Flowers and Williams told him that they robbed Louisiana Capitol in Hammond, Louisiana in January of 1999. ( Id.) Both Flowers and Williams told Tasco that they used a stolen Toyota Camry as the getaway vehicle and that they then switched to a Dodge Intrepid that Aleem Suluki rented for Flowers while Suluki was repairing Flowers' car. ( Id.) Williams also informed Tasco that a black female talking on a cellular phone followed them from the Louisiana Capitol parking lot. ( Id.)
On the basis of this information, Magistrate Judge Wilkinson approved a search warrant to scrape Flowers' mouth with a sterile swab to obtain DNA samples and to obtain palm prints and hair samples from Flowers' body, face, and head.
Flowers contends that the search did not comply with the Fourth Amendment because SA Riker omitted two pieces of information from the affidavit. Specifically, SA Riker failed to state that Detective Dotey identified other people as the robbers in photographic spreads shown to her after the robbery. Flowers submits SA Riker's FBI investigation report of the photographic identification in support of his argument. (Def.'s Ex. 2.) Furthermore, Flowers contends that SA Riker failed to inform the magistrate judge "that Suluki told the rental agency that only he, Suluki, drove the vehicle." (Def.'s Mot. at 2.) In support of his argument, Flowers submits a Hammond Police Department Criminal Investigation Narrative that includes this information. (Def.'s Ex. 3.)
(2) Analysis
Flowers argues that he is entitled to an evidentiary hearing and suppression of the evidence gathered from his person because of the affidavit's two omissions. Flowers, however, has supplied no direct evidence that SA Riker made either omission with the intent to mislead the magistrate judge. As noted supra, however, Flowers could nevertheless be entitled to an evidentiary hearing if he can show that the omitted material is "clearly critical" to a finding of probable cause. The omitted material is "clearly critical" to a finding of probable cause if its inclusion in the affidavit would negate the magistrate judge's finding of probable cause. See Cleveland, 964 F.Supp at 1078. "[P]robable cause requires only a probability or substantial chance of criminal activity." Illinois v. Gates, 462 U.S. 213, 245, n. 13 (1983). The Court considers the totality of the circumstances when determining whether probable cause exists. U.S v. Dickey, 102 F.3d 157, 162 (5th Cir. 1996).
In this case, neither of the omissions would have made any difference in the magistrate judge's probable cause determination. At the outset, the Court notes that reading SA Riker's report of Detective Dotey's photographic identifications as a whole, it is clear that she did not positively identify the wrong men in the photographic spreads, as Flowers contends. Instead, she was equivocal when she made the identifications. (Def.'s Ex. 2.) Detective Dotey stated that she was unsure of her identifications, and she informed SA Riker that she would be able to make more accurate identifications if she could view actual physical lineups as opposed to photographic spreads. ( Id.) In light of the other evidence supporting probable cause, see supra at II.B. (1), such an equivocal identification would not have eliminated probable cause even if it had been disclosed.
Suluki's statement to the rental car agency is likewise not critical to a finding of probable cause. Common sense counsels that a person might make such a statement to a rental car agency because permitting others to drive a rental car is often contrary to rental agreement. Accordingly, the Court finds that Suluki's statement to the rental car agency does not seriously undermine his later statements to law enforcement that he rented the car for Flowers and that Williams was in possession of it when it came time to return the car.
Moreover, Suluki's detailed account to law enforcement is independently corroborated and easily verifiable. First, James Tasco informed SA Riker that Flowers and Williams told him that Suluki rented the Intrepid that they used in the robbery for Flowers. Tasco's statement corroborates Suluki's statement to law enforcement that he rented the Intrepid for Flowers. Second, Bobby Marble, the rental car agency employee, identified Williams as the person who was with Suluki when Suluki returned the car. This corroborates Suluki's statement to law enforcement that Williams was in possession of the vehicle and that Williams returned the vehicle with him. Furthermore, Suluki informed law enforcement of details such as the make, year, and model of Flowers' car, and he stated that Flowers wired him $1,060.00 for the repairs. These details are easily verifiable. Notably, Flowers produces no evidence that he did not take a 1983 Buick Skylark to Suluki's shop for repairs or that he did not pay Suluki $1,060.00 to repair his car.
When the Court considers the omissions along with the material contained in the affidavit, it is clear that probable cause still exists for the warrant. Two witnesses, Suluki and Tasco, implicated Flowers in the robbery. Tasco stated that Flowers and Williams both admitted to him that they committed the robbery using the rented Intrepid, and Suluki tied Flowers to the Intrepid and to Williams. Moreover, the rental agency employee positively identified Williams, and therefore tied him to the Intrepid and to the duffel bag. The bank employees stated that the robbers used a duffel bag in commission of the crime, and Detective Dotey observed one of the robbers enter the getaway car with a duffel bag. Furthermore, although Detective Dotey gave erroneous tentative identifications, her physical description of the robbers is consistent with the bank employees' physical descriptions, and it is consistent with the physiques of Flowers and Williams.
Considering the totality of the circumstances, the Court finds that probable cause still exists. Accordingly, the Court denies Flowers' request for an evidentiary hearing and motion to suppress.
III. CONCLUSION
For the foregoing reasons, the Court DENIES the defendant's motion.