People v. Leon Guerrero

Opinion

I

FILED

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l Q? Gum 2 2U29 H*R 10 pr l=23 3 -CLERK GF CflURT

4 By!

5 IN THE SUPERIOR COURT OF GUAM 6

7 THE PEOPLE OF GUAM, 8 CRIMINAL CASE no. CF0742-18-01

9 vs.

DECISION AND ORDER

10

ll STEVEN JAMES SABLAN LEON GUERRERO, 12

Defendant.

13

14 INTRODUCTION

15 This matter came before the Honorable Vernon P. Perez on December 13, 2019, for 16 hearing on Defendant Steven James Sablan Leon Guerrero's ("Defendant") Motion to Suppress.

17 Defendant was present with counsel, Attorney William B. Brennan, and Assistant Attorney 18 General Woodrow D. Pengelly was present on behalf of the PeOple of Guam ("the 19 Government"). Having reviewed the pleadings, the arguments presented, and the record, the 20 Court now issues the following Decision and Order DENYING Defendant's Motion to 21 Suppress.

22 BACKGROUND

23 On or about November 22, 2018, Dennis Dizon ("Dizon") was apprehended at a Guam 24 Power Authority ("GPA") substation in Mongmong, Guam. See W. BrennanDecl., Ex. A (Sep.

25 27, 2019). Dizon allegedly told GPD Officer Cruz that he was at the substation waiting for his 26 "chakmat," identified as Erica Taimanglo. Id. Dizon allegedly later told Officer Cruz that this 27 statement was false and that he was there as the lookout for several made individuals who were 28

People v. Leon Guerrero Case No. CF0742-18-0l Decision and Order

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1 going to steal copper wire. Id. Dizon told Officer Cruz that he only knew the two males by 2 their first names, Jason and Mel, described the two males and indicated where one of them 3 lived. Id. About forty minutes later, at the Hagatna Precinct, Dizon told Officer Cruz that he 4 was with three males when they entered the fenced compound of the GPA substation. Id. 5 Dizon provided Officer Cruz with other information related to Jason and Mel, including their 6 plans for the copper wire. Id. No further information was mentioned relative to the 7 involvement of a third male individual. Id. Dizon also provided a written statement to Officer 8 Cruz, which includes information relative to Jason's role. See W. Brennan Decl., Ex. B (Sep. 9 27,2019) 10 Officer Pauli ro conducted a follow up investigation into separate burglaries and after 11 receiving information regarding Dizon on December 4 and 7, 2018, made arrangements to re- 12 interview Dizon on December 10, 2018. See W. Brennan Decl., Ex. D (Sep. 27, 2019). On this 13 date, Dizon identified Steven Sablan Leon Guerrero, Melvin Sablan Leon Guerrero and Jason 14 Ray Taisipic Taimanglo as his co-conspirators in the alleged GPA substation theft and other 15 alleged burglaries. See id. 16 The following day, Officer Pauli ro applied for a warrant to search certain property for 17 specific items relating to the alleged burglaries, including Defendant's alleged address and 18 vehicle. See W. Brennan Decl., Ex. E (Sep. 27, 2019). The Application was brought before the 19 Court as Ex Parte Judge and was granted. In his Affidavit's Statement of Probable Cause, 20 Officer Pauli ro set forth that On November 22, 2018, "DIZON informed Hagatna Police 21 Officers that the males who managed to flee from the Substation were namely Steven, Mel, and 22 Jason, however, DIZON did not know their last names..." See W. Brennan Decl., Ex. E (Sep. 23 27, 2019). The warrant application included a schedule of items to be searched for, with some 24 items also having a corresponding serial number. Id. The warrant was executed on December 25 12, 2018. Id. On December 20, 2018, Officer Pauli ro went before the Court to return the 26 warrant and provided a list of items seized from Defendant's alleged residence, a white shipping 27 container, pursuant to the warrant. Id. 28

People v. Leon Guerrero Case No. CF0742- 18-01 Decision and Order

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1 Subsequently, on December 21, 2018, Defendant, Dennis Delosario Dizon, Melvin 2 Sablan Leon Guerrero and Jason Taimanglo were each indicted with the following charges: (1) 3 Burglary (As a Second Degree Felony) - 4 Counts; (2) Theft By Receiving (As a Second 4 Degree Felony) - 4 Counts; (3) Theft (As a Second Degree Felony) - 4 Counts, (4) Attempted 5 Theft (As a Second Degree Felony); and (5) Criminal Trespass (As a Misdemeanor). 6 (Indictment, Dec. 21, 2018). All charges relating to Defendant were severed from the other 7 defendants on July 31, 2019. See Order, Jul. 31, 2019. 8 On September 27, 2019, Defendant tiled the instant Motion to Suppress. On November 9 4, 2019, the Government filed its Opposition, and on November 12, 2019, Defendant filed his 10 Reply.

On December 13, 2019, the Court held a Motion Hearing to hear arguments on the 12 threshold issue of whether Defendant made a substantial preliminary showing that a Franks 13 evidentiary hearing is warranted pursuant to Franks v. Delaware, 438 U.S. 154 (1978). After 14 hearing oral arguments from the parties, the Court placed the matter under advisement. 15 DISCUSSION 16 Defendant moves the Court to suppress evidence seized pursuant to the December 11, 17 2018 warrant because such warrant is invalid under Franks v. Delaware.l See generally, Mot. 18 Suppress at 1-7. 19 I. Franks Hearing Standard 20 In Franks, the Supreme Court of the United States held that:

21 where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, 22 was included by the affiant in the warrant affidavit, and if the allegedly false 23 statement is necessary to the finding of probable cause, the Fourth Amendment 24 requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the 25 defendant by a preponderance of the evidence, and, with the affidavit's false 26

27 1 Defendant also moves the Court to suppress evidence seized pursuant to the warrant because officers executing the warrant went beyond the scope of the warrant. See Mot. Suppress at 7-9. This issue is not yet before the Court 28 at this time.

People v. Leon Guerrero Case No. CF0742-18-01 Decision and Order material set to one side, the affidavit's remaining content is insufficient to l establish probable cause, the search warrant must be voided and the fruits of the 2 search excluded to the same extent as if probable cause was lacking on the face of 3 the affidavit.

4 Franks, 438 U.S. 154, 155-56 (1978). Thus, "[a] defendant is entitled to an evidentiary hearing

5 on the validity of the affidavit underlying a search warrant if the defendant can make a

6 substantial preliminary showing that (1) the affidavit contains intentionally or recklessly false

7 statements or misleading omissions, and (2) the affidavit cannot support a finding of probable

8 cause without the allegedly false information." United States v. Reeves, 210 F.3d 1041, 1044

9 (9th Cir. 2000) (citations omitted). The Supreme Court expressly recognized in Franks that

10 there is "a presumption of validity with respect to the affidavit supporting the search warrant,"

and that "if, when the material that is the subject of the alleged falsity or recldess disregard is set

12 to one side, there remains sufficient content in the warrant affidavit to support a finding of

13 probable cause, no hearing is required." 483 U.S. at 171-72. A "totality of circumstances" test

14 should be applied in determining whether the affidavit established probable cause. Illinois v.

15 Gates, 462 U.S. 213, 230-31 (1983). "[S]o long as the magistrate had a substantial basis for ...

16 conc1ud[ing] that a search would uncover evidence of wrongdoing, the Fourth Amendment

17 requires no more." Id. at 236 (citation and quotation marks omitted). "In doubtful cases,

18 preference should be given to the validity of the warrant." United States v. Barnes, 816 F.2d

19 1354, 1357 (9th Cir. 1987).

II. Officer Paulin0's Affidavit 20

The first prong of Franks requires the Court to determine whether Defendant has made a 21

substantial preliminary showing that Officer Paulino's Affidavit contains intentionally or 22

recklessly false statements or misleading omissions. Here, Defendant alleges that Officer 23

Paulino's Affidavit in support of the search warrant application contained intentional or reckless 24

misrepresentations and omissions that were material to the Court's finding of probable cause.

25

Id.

26

27 Defendant first sets forth that Officer Paulino's Affidavit avers that on November 22,

28 2018, Dizon told officers that Steven, Mel and Jason were his accomplices in the GPA

People v. Leon Guerrero Case No. CF0742- 18-01 Decision and Order 1 Substation Facility attempted copper wire theft, contrary to the GPD narrative report. ld. at 5. 2 However, the Affidavit does not mention that Dizon told officers that he only allegedly knew 3 Mel and Jason's first names and that he allegedly lied to police when he was first discovered, 4 stating he was waiting for his "chakmat." Id. 5 The Government acknowledges that the "affidavit does erroneously mention that 6 Defendant was named by Dizon on November 22, 2018 and does not mention the girlfriend 7 story." (Opp'n at 2). The Government argues, however, that Officer Paulino's inaccurate 8 claim "is at best merely a negligent oversight and in no way rises to the level of reckless 9 disregard for the truth." Id. at 3. 10 The Court begins its evaluation noting that there is "a presumption of validity with 11 respect to the affidavit supporting the search warrant." Franks, 438 U.S. at 171. "To mandate 12 an evidentiary hearing, the challenger's attack must be more than conclusory and must be 13 supported by more than a mere desire to cross-examine. There must be allegations of deliberate 14 falsehood or reckless disregard for the truth, and those allegations must be accompanied by an 15 offer of proof." Id. "The deliberate falsity or reckless disregard whose impeachment is 16 permitted today is only that of the affiant, not of any nongovernmental informant." Id. 17 In this case, there is no dispute that Office Pauli ro misrepresented in his affidavit that 18 Dizon told officers that Defendant was identified as one of his accomplices on the night of 19 November 22, 2018, and that Officer Pauli ro did not mention that Dizon allegedly lied to the 20 police when he was first discovered that night, stating that he was waiting for his "chakmat." 21 What is disputed, however, is whether such misrepresentation was intentional or reckless and 22 material to the Ex Parte Judge's finding of probable cause. The Court does not find that 23 Officer Paulino's claim that Dizon named Defendant in the November 22, 2018 interview to be 24 an "intentional falsehood" or "recldess disregard for the truth." "[A]l1egations of negligence or 25 innocent mist&e are insufficient" for a Franks hearing. Franks, 438 U.S. at 171. Although 26 Defendant was not named by Dizon on November 22, 2018, he was named by Dizon later on 27 December 20, 2018 during Officer Paulino's interview with Dizon. The Court finds that Officer 28

People v. Leon Guerrero Case No. CF0742-18-01 Decision and Order 11\1\\11 I l ll\l \111\111 I l l l I l l I l ll I l um l l I II I II I I llllllll__

1 Paulino's statement about when Defendant was first named by Dizon was a negligent oversight, 2 and not a reckless disregard for the truth.

3 The Court also does not find that Officer Paulino's omission of Dizon's initial story that 4 he was waiting for his "chakmat" was intended to mislead the Ex Parte Judge. "Merely 5 identifying factual omissions is insufficient. Rather, to obtain a Franks hearing, the defendant 6 must show that the omissions were designed to mislead, or made in reckless disregard of 7 whether they would mislead and that the omissions were material, meaning that their inclusion 8 in the affidavit would defeat probable cause." United States v. Clenney, 631 F.3d 658, 664.

9 The "worst course of action would be to pick apart warrant affidavits from the pristine perch of 10 hindsight or to penalize officers for securing what the law requires." Id. at 655. Here, Defendant argues that Dizon's "credibility was part and parcel to the Magistrate's finding of 12 probable cause because there was no other incriminating evidence of Steven's involvement in 13 criminal conduct presented to the Magistrate." (Reply at 3). "If an informant's history of 14 criminal acts involving dishonesty renders his/her statements unworthy of belief, probable cause 15 must be analyzed without those statements." United States v. Reeves, 210 F.3d 1041, 1044 (9th 16 Cir. 2000) (citing United States v. Hall, 113 F.3d 157, 159 (9th Cir.l997)). "If inclusion of the 17 omitted facts would not have affected the probable cause determination, no Franks hearing is 18 required. The determination of whether information provided by an informant establishes 19 probable cause is based on the 'totality of the circumstances." Id. (internal citations omitted).

20 In this case, Dizon's initial story about why he was present at the scene of the first 21 alleged offense was given to law enforcement officers responding to the scene and not under 22 oath to a magistrate. Dizon did not have a criminal record for any crimes of dishonesty or 23 making false statements under oath. Cf United States v. Hall, 113 F.3d 157 (9th Cir. 1997)

24 (informant's credibility critical in reviewing magistrate's probable cause determination as the 25 informant and state trooper omitted numerous crimes under oath before the magistrate, 26 including omitting the informant's conviction for malting a false report to law enforcement 27 officers). Although Dizon initially gave a false reason for being at GPA on November 22, 2018, 28 the Court does not find that the omission of such statement to be material or that it was intended

People v. Leon Guerrero

Case No. CF0742-18-01

Decision and Order

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l to mislead based on the crimes alleged. As the Government sets forth, the "affidavit clearly 2 indicates Dizon was involved in a series of burglaries, so clearly Dizon [was] not being held out 3 as a paragon of honesty." (Opp'n at 4). Further, "[a]dmissions of crime, like admissions 4 against proprietary interests, carry their own indicia of credibility - sufficient at least to support 5 a finding of probable cause to search." United States v. Harris, 403 U.S. 573, 583 (1971).

6 Dizon gave detailed first-hand information that incriminated him, identifying how the burglaries 7 were committed and organized, and admitted to other burglaries in addition to the GPA 8 burglary, which GPD was able to independently corroborate afterwards. Accordingly, the Court 9 finds that Defendant has not made a substantial preliminary showing that Officer Paulino's 10 affidavit contained intentionally or recklessly false statements or misleading omissions, and is therefore not entitled to a Franks evidentiary hearing on his allegations.

12 CONCLUSION 13 For the foregoing reasons, the Court hereby DENIES Defendant's request for an

14 evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). A Motion Hearing is 15 set for Manda 'Z?I'Lo20at Q00 a.rn.»Lp=-nn-. to consider the remaining arguments raised in 16 Defendant's Motion to Suppress.

17

IT IS SO ORDERED this day of March, 2020.

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HONORIK1§LE VERNON p. PEREZ Judge, Superior Court of Guam

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24 SERV§CE VIA COURT :box I ackn0'~.=l6=.uge that a copy of the 25 original hereto was placed in the court box QL

26 Ag \`\\Avv"*»\ ax

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Date: 3\v>\m® m<

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Deputy Clerk, Superior Court of Guam

People v. Leon Guerrero

Case No. CF0742-18-01

Decision and Order