United States v. Cican

63 F. App'x 832
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 22, 2003
DocketNo. 01-2296
StatusPublished
Cited by10 cases

This text of 63 F. App'x 832 (United States v. Cican) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cican, 63 F. App'x 832 (6th Cir. 2003).

Opinion

RUSSELL, District Judge.

The United States appeals the district court’s decision to exclude from evidence certain firearms found at the home of the Appellee. The United States claims that the district court incorrectly used an objective, rather than a subjective, standard when applying the test found in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We conclude that the district court correctly applied the subjective standard and affirm its decision.

I.

On August 24, 2000, the Inskter, Michigan, police department received a report of a bomb threat telephoned to a pay phone at Carrón Industries. The police were told that a male caller had claimed a bomb would go off at 6:00 PM that day. No bomb was found that evening; the next day the case was assigned to Detective Anthony Delgreco for investigation.

Delgreco spoke with witnesses at Car-rón Industries who told him that the phone rang about 5:25 PM. Delgreco noted the location of the phone in the garage area and its number. He then drafted a subpoena to the telephone company for “Telephone Records Showing All Calls Received At Payphone Number 313-277-9378 Between the Hours of 5:20 PM and 5:30 PM on 8/24/00. And Where Those Originated.”

On August 31, 2000, the telephone company replied to the subpoena by faxing a document to Delgreco. The cover sheet referenced the subpoena, but nothing in the document stated the time period covered by the report. The document itemized two calls received at the pay phone, one of which listed no originating number and lasted no time at all. The only other phone call, and the only one identifiable, came from 517-546-3865, an unpublished number subscribed by Rochelle Cican of Howell, Michigan, about forty miles from Inkster. The connection time for that phone call was 1:50 PM.

Delgreco learned that Rochelle Cican lived at that residence with the Appellee, and that the Appellee worked at Carrón Industries. Delgreco then interviewed the Appellee, who stated that he had left work at about 3:30 PM on August 24 and arrived home at about 5:00 PM. The Appellee said that he spent the rest of the evening at home, alone, and that he had not made any phone calls from the residence that evening.

The next morning, September 1, 2002, Delgreco went presented an affidavit for a state warrant to search the Cicans’ residence for evidence of the bomb threat. The affidavit stated, “According to Ameri-tech records, only one call came into that phone and it was from telephone number 517-548-3865.” Delgreco presented the fax to the state prosecutor, who then ap[834]*834proved and signed the warrant application. A state district judge reviewed the affidavit and issued the warrant.

With officers from Inskter, Livingston County, the Michigan State Police bomb squad, and the Bureau of Alcohol, Tobacco & Firearms, Delgreco executed the warrant on September 1st. In the Cieans’ home he found a suspected pipe bomb, 37 containers of gunpowder, a package of cannon wick (fuses), seven books on explosives, munitions and silencers, seven machine guns, five silencers, and dozens of more conventional firearms.

On February 21, 2001, a grand jury indicted the Appellee on 12 counts of possession of unregistered firearms (the machine guns and silencers) in violation of 26 U.S.C. § 5861(d). The defense challenged the indictment based on the alleged invalidity of the search warrant. It alleged that the search warrant affidavit had been a “kind of misrepresentation that is at best disingenuous and certainly reckless disregard for the actual facts” because it erroneously implied that the call made from the Cieans’ residence to Carrón Industries could have been the one relaying the alleged bomb threat.

The United States conceded that “with the benefit of hindsight, it is undisputed that the call from the Cieans’ residence to the pay phone at Carrón Industries was made about 1:50 PM and could not have been the call during which the bomb threat was made.”1 The United States also agreed that while the affidavit was literally true, it clearly implied the same erroneous assumption Delgreco had made — that the phone call reported by Ameritech had been made about the same time of the reported bomb threat. Finally, the United States conceded that without this erroneous assumption there was no basis for the search.

On July 16, 2001, the district court held an evidentiary hearing with Delgreco as the only witness. He testified that he had drafted the subpoena and deliberately requested information only for the period from 5:20 PM to 5:30 PM, that when he received the faxed response he noticed that only one identifiable call had been made to the payphone, and that he therefore immediately began investigating the source of that call. He testified that he did not notice that the fax referenced a connection time inconsistent with the subpoena.

During oral argument before the district court, the United States cited Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) — and supporting circuit cases — for the proposition that in order to be “reckless” an officer must have acted with “an intention to mislead.” During the hearing the district court repeatedly stated that it did not doubt Delgreco’s testimony or his veracity.

On July 24, 2001, the district court granted the defendant’s motion and ordered all the evidence suppressed. This order accepted the “subjective” standard and concluded:

[gjiven Detective Delgreco’s ignoring of the readily-apparent reasons to doubt the veracity of his allegation that a call was made from defendant’s telephone to the pay telephone at Carrón Industries near the time of the alleged bomb threat, and the lack of any rational explanation for Detective Delgreco’s inat-tentativeness, the Court infers that Detective Delgreco entertained serious doubts as to the veracity of his allegation and thus acted recklessly.

[835]*835The district court’s order also stated, erroneously, that Delgreco had considered the faxed information for “roughly six days.”

The government filed a timely motion for reconsideration, noting that Delgreco had signed the affidavit only the day after receiving the fax and asking the district court to consider its own oral comments about Delgreco’s veracity. The government suggested that the district court had erroneously utilized an objective standard of “reckless” action rather than a “subjective” one. The district court denied this motion, conceding that it had erred in its “six days” statement but finding that this error was immaterial. The later order did not address the government’s argument that the court either did not apply a subjective standard or applied it erroneously.

II.

We review the lower court’s conclusions of law de novo and its factual determinations for clear error. United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999). The parties raise three issues: 1) the appropriate standard of recklessness; 2) the standard the district court applied; and, 8) the validity of that application.2

A.

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Bluebook (online)
63 F. App'x 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cican-ca6-2003.