United States of America v. Damon Austin

2019 DNH 014

• Court: District Court, D. New Hampshire
• Decided: January 16, 2019
• Docket: 18-cr-102-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-102-JD Opinion No. 2019 DNH 014 Damon Austin

O R D E R

Damon Austin is charged with two counts of possession of a

firearm by a prohibited person in violation of 18 U.S.C.

§ 922(g)(1) and § 924(a)(2). He moves to suppress evidence

discovered during a search of his home, pursuant to a search

warrant, and requests a hearing on his motion. The government

objects.

Background1

On April 14, 2018, the Somersworth (New Hampshire) Police

Department was notified by a radio call that a man had pulled a

gun and pointed it at another person on Union Street in

Somersworth. Doc. 22-1 at *1. The police were told that the

man with the gun left the scene of the incident in a blue SUV

1 The background facts are taken from the affidavit submitted in support of the search warrant, document no. 22-1, that was prepared by Officer Anthony DeFrancesco, of the Somersworth Police Department. Statements made to other officers are also summarized, as noted. driven by a woman. The police determined that the SUV was

registered to Tanya Phillips.

Officers Geary and Mulcahey responded to the area and

stopped the SUV. Geary arrested the passenger in the SUV, Damon

Austin, and Mulcahey arrested the driver, Tanya Phillips. In

his search of Austin, Geary found “an extended magazine for a

Glock .40 caliber pistol” in Austin’s pants pocket.

Officer Anthony DeFrancesco arrived during the arrest

process. As he approached, DeFrancesco asked Geary and Mulcahey

where the gun was. Austin yelled that the gun was in the front

seat of the SUV. DeFrancesco looked in the passenger side front

window and saw a Glock pistol on the floor. An infant child and

two dogs were also in the SUV. DeFrancesco removed the gun and

secured it.

The officers arranged for the SUV to be towed and for

relatives to take the infant and dogs. Geary and Mulcahey took

Phillips and Austin to the Somersworth Police Department for

booking.

DeFrancesco went to 18 Union Street in Somersworth where

the reported gun threatening incident had occurred. He talked

to Christopher and Elisa Brown, who lived there. Christopher

Brown told DeFrancesco that Damon Austin was his cocaine

supplier and that he had been “hanging out” with Austin for

three months. He also said that Austin had been staying at the

2 Browns’ house for three days and that he and Austin had been

getting high in the basement.

Brown further explained that Elisa, his wife, told them

that morning that they had to leave the house. Austin refused

to go, which caused an issue between Elisa and Christopher.

Christopher believed that Elisa was leaving him. Later he had

multiple phone conversations with Austin, which included Brown

threatening to kill Austin.

Elisa told DeFrancesco that her husband and Austin had been

hanging out in the basement a lot. She said that they just

talked. That morning, however, Elisa woke up at 3:00 am and

discovered that Austin was in the basement with a woman, whom

she identified as Jess. Elisa told them all that they had to

leave her house and argued with Austin about leaving.2 Austin

threatened to punch her in the face. Elisa said she also argued

with her husband and demanded that he get Austin and Jess to

leave.

Christopher Brown went to work and then walked home,

finding the house empty. He was standing outside smoking when

Tanya Phillips drove up in her blue SUV. Austin jumped out of

the passenger side of the SUV, and Brown and Austin got into a

2 Christopher Brown told DeFrancesco that Elisa had learned that morning that Jess’s family had reported her missing.

3 heated argument.3 During the argument, Austin walked toward

Brown and pulled a gun and magazine out of his right front

pocket. Brown said the gun was a Glock, which he knew because

he had been with Austin when he bought it in exchange for crack

cocaine. Austin put the magazine in the gun, chambered a round,

and pointed the gun at Brown’s face. Brown got a knife from the

porch. Austin went back to the SUV and said he would be back

after dark, which Brown interpreted to mean that Austin would

come back to shoot the house up. Brown also said that Phillips

was there during the incident, yelling at both of them.

Brown told DeFrancesco that Austin did not have a gun when

he was at his house that morning. He also said that he knew

Austin stored the gun at his home at 17B High Street in

Somersworth. Brown said that Austin sold crack, cocaine, and

marijuana, and that he made crack at that house. Brown

described the process for making crack and where he had seen

Austin’s cooking items and crack in the kitchen at that house.

Brown said he was last at Austin’s home two days before the

incident, when he bought a gram of cocaine. He said that ninety

percent of his drug purchases from Austin were done there and

that he had seen crack and cocaine at the house in the last two

3 DeFranceso’s affidavit, document no. 22-1 at *2, actually says “that is when Chris jumped out of the passenger side door of her vehicle.” Taken in context, it is clear that DeFrancesco meant that Austin jumped out of the SUV.

4 days. Brown said that there were two black safes in the house,

one in the dining room and one in the bedroom. He said that

Austin kept drugs, guns, and money in the safes. He also said

that he estimated there were ten more guns in the dining room

closet and that Austin had told him that he hid guns and money

all over the house.

At the police department, officers checked the serial

number of the Glock gun on the “NCIC” and discovered it had been

stolen during a burglary in Saco, Maine. Phillips was read her

Miranda rights, waived them, and gave a statement to

DeFrancesco. She confirmed that she drove Austin to the Browns’

house, where he was supposed to pick up a gaming system, but

denied any other involvement in the incident. She said she did

not know Austin had a gun with him and denied that there were

any guns in the house. She confirmed that there was a safe in

the living room and a safe in the bedroom of her house, that she

had paperwork in the bedroom safe, and that Austin used the

living room safe.

Austin was read his Miranda rights and refused to talk

about the incident. During booking, however, he told Geary that

he was a member of a gang, the Mattapan Avenue Crips.

DeFrancesco stated in his affidavit that the Mattapan Avenue

Crips are a well-known street gang, which is associated with the

colors blue and black. A blue bandana was found in the SUV,

5 which denotes gang membership. DeFrancesco also noted that

Austin has multiple gang tattoos. DeFranceso also reported that

Austin’s criminal history included misdemeanors and a felony.

Based on the facts stated in his affidavit, DeFrancesco

sought and obtained a warrant to search Austin’s home at 17B

High Street in Somersworth on April 14, 2018. The warrant was

executed the same day. During the search officers found seven

more guns and ammunition. They also found evidence of drug

distribution, including substances that were suspected of being

drugs. In addition, they found four keys that were later

confirmed to be working keys for the Mattapan Police Precinct in

Boston.

The next day, April 15, Officer Geary prepared a written

narrative about the arrest and a Gerstein affidavit.4 In his

narrative, Geary wrote that Austin initially agreed to talk to

him but when he asked about 18 Union Street (the Browns’

residence) Austin just shook his head. Geary states that “later

Austin would make mention to the fact that he had responded to

Union Street with the intent to take custody of a gaming console

4 For purposes of a warrantless arrest, “[a] Gerstein affidavit is a sworn statement filed by the arresting officer to provide a proper basis for a judicial determination of probable cause.” Giroux v. Town of Danbury, 2008 WL 150655, at *7 (D.N.H. Jan. 15, 2008) (citing Gerstein v. Pugh, 420 U.S. 103 (1975)).

6 from Christopher Brown.” Doc. 20-2, at *5. Geary wrote, among

other things in the Gerstein affidavit, that when he talked to

her at the time of her arrest, Phillips decided to invoke her

Miranda rights and not answer questions related to the incident.

Doc. no. 22-6, at 1.

Officer Mulcahey also provided a narrative about the

arrests on April 15. He wrote that after putting Phillips in

handcuffs, he read her Miranda rights and asked if she would

answer questions. Phillips told Mulcahey she did not know what

happened on Union Street (at the Brown’s house) because she only

knew that she took Austin there to get his Sony Playstation

console back. She said she did not know of any conflict between

Austin and Brown and that she and Austin were on their way to

Dunkin Donuts to get their daughter food. Mulcahey

characterized Phillips’s answers as “not providing me with very

much information.”

On April 19, five days after the incident and the search,

ATF Special Agent McPartlin wrote a narrative, based on

information provided by Detective John Sunderland of the

Somersworth Police Department, about “possession of firearms by

Damon AUSTIN, a previously convicted felon.” Doc. 22-2, at *1.

In the narrative, McPartlin wrote that attempts by the police to

interview Phillips and Austin “were not successful” but that

7 Phillips admitted “to driving AUSTIN over to the victim’s

residence, but she did not admit to knowing that AUSTIN used a

firearm during the incident.” Doc. 22-2, at *2.

Discussion

Austin moves to suppress everything that was found in the

search of his home at 17B High Street in Somersworth. In

support, he contends that the search warrant was not supported

by probable cause and that the good faith exception does not

prevent application of the exclusionary rule. He also asks for

a hearing on his motion. The government objects.

A. Hearing

“An application supporting a warrant is presumptively

valid.” United States v. Barbosa, 896 F.3d 60, 67 (1st Cir.

2018) (internal quotation marks and alterations omitted).

Nevertheless, “a defendant is entitled to an evidentiary hearing

to test the veracity of a warrant affidavit if he can make a

substantial showing that the affiant intentionally or with

reckless disregard for the truth included a false statement in

the affidavit, which statement was necessary to the finding of

probable cause.” United States v. Tanguay, 787 F.3d 44, 48-9

(1st Cir. 2015) (citing Franks v. Delaware, 438 U.S. 154, 155-56

(1978)). A hearing is also required if the defendant makes a

8 substantial showing that material information was omitted

intentionally or recklessly from the warrant affidavit.

Barbosa, 896 F.3d at 68.

In this case, Austin asks for an evidentiary hearing but

does not address the requirements for a hearing. Austin makes

no showing, much less a substantial showing, that an evidentiary

hearing is necessary to test the veracity of the warrant

affidavit. Instead, Austin focuses on his argument that the

warrant application failed to provide probable cause to support

the application.

Austin challenges the veracity of the affidavit only in the

context of arguing that the good faith exception to the

exclusionary rule should not apply. For that purpose, Austin

contends that DeFrancesco omitted material information from the

affidavit and that the descriptions in the affidavit about

statements made by Phillips and Austin are contradicted by other

officers’ reports.

To be entitled to a hearing, Austin would have to show that

DeFrancesco intentionally or recklessly included false material

information or omitted material information from the warrant

affidavit. As the government points out, the reports Austin

cites were prepared after DeFranceso applied for and was granted

9 the search warrant.5 Therefore, Austin cannot show intentional

or reckless false statements or omissions.

Further, the cited omissions or inconsistencies are not

material. DeFrancesco interviewed Phillips himself and his

affidavit was prepared based on her statements to him. Austin

has not shown that Phillips’s statements to others were known to

DeFrancesco when he completed the warrant affidavit or that any

inconsistencies detract from the information provided in

DeFrancesco’s affidavit. DeFrancesco’s summary of Austin’s

responses to other officers are consistent with their reports.

Therefore, Austin did not show any intentional or reckless

false statements or material omissions from the warrant

affidavit.

B. Probable Cause

The Fourth Amendment requires that probable cause exist to

support an application for a search warrant. Barbosa, 896 F.3d

at 67. Probable cause for a search warrant “‘exists when the

affidavit upon which a warrant is founded demonstrates in some

trustworthy fashion the likelihood that an offense has been

committed and that there is sound reason to believe that a

5 Officer Geary prepared the Gerstein affidavit and his narrative the next day, April 15. Officer Mulcahey also prepared his report the next day. Special Agent McPartlin provided her report on April 19, five days later.

10 particular search will turn up evidence of it.’” Tanguay, 787

F.3d at 50 (quoting United States v. Schaefer, 87 F.3d 562, 565

(1st Cir. 1996)). The two requirements for probable cause for a

search warrant are known as the commission and the nexus

elements. United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir.

2005).

Austin states that he primarily contests the commission

element of probable cause because, he contends, the affidavit

did not show that Brown was a reliable informant. In a

variation of that argument, Austin contends that the nexus

element was not met because the affidavit does not show that

Brown’s statements were corroborated. The government asserts

that Brown was both a reliable source of information and that

his information was corroborated.

1. Source

Austin incorrectly identifies Brown as a confidential

informant. Based on that theory, Austin contends that the

warrant affidavit did not adequately support the reliability and

trustworthiness of the informant. See United States v. Ramirez-

Rivera, 800 F.3d 1, 27 (1st Cir. 2015).

The government points out that Brown was not a confidential

informant. Instead, Brown was the victim of Austin’s threat

with a loaded gun. Credible information from the victim of a

11 crime is generally considered to be reliable. Barbosa, 896 F.3d

at 70.

The government contends that other factors also support the

reliability of Brown’s information. When assessing the

reliability of an informant, the court may consider a variety of

factors including “(1) the probable veracity and basis of

knowledge of the informant; (2) whether an informant’s statement

reflect first-hand knowledge; (3) whether some or all of the

informant's factual statements were corroborated wherever

reasonable and practicable; and (4) whether a law enforcement

officer assessed, from his professional standpoint, experience,

and expertise, the probable significance of the informant's

information.” United States v. White, 804 F.3d 132, 137 (1st

Cir. 2015).

Brown explained to DeFrancesco that Austin was his cocaine

supplier, that he had been using cocaine with Austin over

several months, and that the dispute which lead to the threat

from Austin arose from those circumstances. Brown’s statements

about his own criminal activity were incriminating, which

bolstered his credibility. See United States v. Vongkaysone,

434 F.3d 68, 74 (1st Cir. 2006). In addition, Brown’s wife,

Elisa, corroborated that Austin and Brown had been hanging out

in their basement and that she had told Austin to leave that

12 morning. DeFrancesco talked to Brown directly and had an

opportunity to assess his credibility.

The information that Brown provided about Austin’s drug

operations and guns that Austin kept in his home was specific

and pertained to drug trafficking. As such, the information

Brown provided could only be based on his personal knowledge

gained during his visits to the house. Cf. Ramirez-Rivera, 800

F.3d at 30 (explaining that generic and innocuous description of

a house does not provide reliable corroboration of an

informant’s tip). Phillips confirmed that there were two safes

in the house in different rooms and that Austin used at least

one of them. Although Austin charges that the affidavit was

insufficient because Brown’s information about the guns was not

corroborated, it is not necessary to have corroboration of all

of an informant’s statements. White, 804 F.3d at 137.

2. Sufficiency

Austin acknowledges that if Brown’s information were

credible and reliable, the warrant affidavit established

probable cause for the search. As is explained above, the

information Brown provided to DeFrancesco, which is repeated in

the warrant affidavit, is credible and reliable. Therefore, the

warrant affidavit was sufficient to show a likelihood that

Austin was engaged in drug trafficking and possessed guns and

13 that there was a sound reason to believe that a search of

Austin’s home at 17B High Street would turn up evidence of those

offenses. Both the commission and the nexus elements of

probable cause were satisfied.

C. Good Faith Exception

Because Austin has not shown that the search of 17B High

Street was done without probable cause, there is no need to

consider the good faith exception to the exclusionary rule.

Conclusion

For the foregoing reasons, the defendant’s motion to

suppress (document no. 20) is denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

January 16, 2019

cc: Georgiana L. Konesky, Esq. Paul A. Maggiotto, Esq. Debra M. Walsh, Esq. U.S. Probation U.S. Marshal