United States v. Boone

263 F. Supp. 3d 1
CourtDistrict Court, District of Columbia
DecidedAugust 14, 2017
DocketCriminal No. 2016-0117
StatusPublished
Cited by1 cases

This text of 263 F. Supp. 3d 1 (United States v. Boone) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Boone, 263 F. Supp. 3d 1 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION & ORDER

JOHN D. BATES, United States District Judge

Before the Court is [53] defendant William Daniel Boone’s motion to suppress all physical evidence seized during a June 29, 2016, search of a house at 2328 36th Street, Southeast, Washington D.C. (“the 36th Street house” or “the house”). Boone alleges that the affidavit submitted in support of the search warrant did not present sufficient facts to establish probable cause. He also contends that .the affidavit included material misstatements that the affiant knew were false or made with reckless, disregard for the truth, and he therefore requests a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). For the reasons explained below, the motion is denied.

BACKGROUND

On June 28, 2016, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) obtained a search warrant signed by Magistrate Judge Harvey of this court, to search the 36th Street house. See Warrant [ECF No. 58 — 1]. In-support'of that warrant, ATF Special Agent Jeremy Horbert submitted an affidavit. See Aff, [ECF No. 58-1], According to the affidavit, ATF, in conjunction with local law enforcement agencies, had been conducting a court-authorized wiretap on the cell phone of James Williams, an individual who the ATF believed was running a drug trafficking organization in Maryland. Id. ¶ 11, 13.

Law enforcement intercepted four phone calls with Williams (using .the phone number. ending 6081) in which he allegedly discussed drug transactions. Three of those phone calls were with a cell phone ending in the numbers 9212, which Hor-bert identified in the affidavit as belonging to Boone. Id. ¶ 15. The affidavit does not state how law enforcement connected that phone number to Boone.

The first phone call took place on May 26, 2016, between Williams and the 9212 cell phone at approximately 4:52 p.m. Id. Williams asked “put shit together for me?”, and the man on the other end of the line responded, “shit I’m right here.” Id. Hor-bert states that “based on [his] training and experience, and knowledge of this investigation” he believes that this conversation consisted of Williams asking the man on the other end of the line to assemble drug packages for him, and his interlocutor responded that the packages were ready for pick up. Id. ¶ 16.

The second call took place on May 31, 2016, at approximately 4:11 p.m., again between Williams and the 9212 cell- phone. Id. ¶ 17. In that call, Williams states “shit just came through,” and then in response *3 to a question about his location, the man on the other end of the call says he is “in the house,” and Williams responds that he will “swing through that motherfucker in a second.” Id. Horbert attests that “based on [his] training and experience, and knowledge of this investigation” he believes that in this call, the man using the 9212 number stated that he was' in the 36th Street house, and Williams responded that he would meet at the house soon to conduct a drug transaction. Id. ¶ 18.

Later that day, GPS location data from Williams’ cell phone placed Williams in the “general area” of the 36th Street house. Id. ¶ 19. Law enforcement then conducted in-person surveillance of the 36th Street house and observed a “black Corvette bearing Virginia registration VMK-9291,” which officers had identified as a car that Williams used based on previous surveillance. Id. At approximately 5:06 p.m.,ilaw enforcement observed Williams exiting the 36th Street house, “carrying .a paper bag containing an object about the size of two packs of cigarettes.” Id,

The third call occurred on June 7,'2016, once again between Williams and the 9212 cell phone, at approximately 1:33 p.m. Id. ¶ 20. In that call, the man using the 9212 number asks what Williams is doing, and Williams responds “shit on the rip.” Id. Horbert believes that “the rip” refers to an “open air drug market” in Forestville, Maryland, and that this conversation indicated that Williams and his interlocutor were discussing selling narcotics at that location. Id. ¶ 21.

The final phone call occurred on June 12, 2016, at approximately 11:49 p.m., between Williams and unknown male using a phone number ending in 7836. Id.- ¶ 22. In that call, the unknown male asks, “sup, got some dope?” and Williams responds “I only got one left and shit from Go-Go.” Id. Horbert asserts that based on prior narcotics investigations, he1'knows-that “Go-Go” is the street name for Boone, and “dope” is the street name for heroin. Id. ¶ 23. He therefore believes that in this phone call, the unknown male asked whether Williams had any heroin, and Williams responded that he only had one dose left, as well as some heroin from Boone. Id.

Based on this set of phone, calls, the affidavit asserts that the house on 36th Street was a location where Williams and his associates stored ■ and distributed “crack cocaine and firearms.” Id. ¶14, Through a search of an open law enforcement database called “The Last One,” Horbert asserts that the house is the primary residence for Boone. Id.

LEGAL STANDARD

“Under United States v. Leon, suppression of evidence is usually not required when officers conduct a search in reasonable reliance' on a search warrant issued by a detached and neutral magistrate.” United States v. Cardoza, 713 F.3d 656, 658 (D.C. Cir. 2013) (citing United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). However, there are a handful of exceptions, As relevant here, law enforcement officers cannot in good faith “rely[ ] on a warrant based on an affidavit ‘so lacking in probable cause ás to render official belief in its existence entirely unreasonable.’ ” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concur-rihg in part)). Whether the affidavit presents sufficient facts to support a finding of probable cause is “á practical commonsense decision whether, given all of the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. *4 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Cardoza, 713 F.3d at 659.

Additionally, “the Leon rule does not apply when the officer seeking the search warrant made false statements in the affidavit and did so either knowingly or with reckless disregard for the truth.” Cardoza, 713 F.3d at 658 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). A defendant is entitled to a hearing into the credibility of the affidavit where he or she “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 that “the allegedly false statement [was] necessary to the finding of probable cause.” Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; see also United States v.

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