United States v. West

503 F. Supp. 2d 192, 2007 U.S. Dist. LEXIS 56281, 2007 WL 2255122
CourtDistrict Court, District of Columbia
DecidedAugust 3, 2007
DocketCrim. 07-121 (CKK)
StatusPublished
Cited by3 cases

This text of 503 F. Supp. 2d 192 (United States v. West) 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. West, 503 F. Supp. 2d 192, 2007 U.S. Dist. LEXIS 56281, 2007 WL 2255122 (D.D.C. 2007).

Opinion

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

On May 8, 2007, Defendant Tyrone West was charged in a three-count indictment with the following offenses for acts com *193 mitted on or about March 2, 2007:(1) Unlawful Possession with Intent to Distribute 5 Grams or More of Cocaine Base, in violation of 21 U.S.G. §§ 841(a)(1) and 841 (b)(1)(B)(iii); (2) Unlawful Possession with Intent to Distribute 100 grams or More of Phencyclidine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(iv); and (8) Using, Carrying and Possessing a Firearm During a Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c)(1). Defendant West was arraigned on June 15, 2007. The next status conference in this case is scheduled to be held on August 3, 2007, at 9:00 a.m., and a jury trial is scheduled to commence on September 19, 2007, at 9:00 a.m.

Presently before the Court is Defendant’s [6] Motion to Suppress Tangible Evidence, filed on July 16, 2007. The government filed a response on July 30, 2007. Defendant’s Motion argues that the tangible evidence seized by police on March 2, 2007 pursuant to a search warrant for apartment T-2 at 106 Galveston Street, SW, signed by Judge Robert Wertheim on March 2, 2007 — including approximately 40 grams of cocaine base, approximately 20 ounces of PCP, a 9mm firearm and a .357 revolver plus ammunition for each, a total of $6,320 in U.S. currency, and Defendant’s birth certificate and other identifying documents, paperwork, and photographs' — '“was seized in violation of the Fourth Amendment of the United States Constitution.” Def.’s Mot. to Suppress ¶¶ 3, 4, 5. Defendant offers only one legal basis for his argument — that the “warrant used in this case was based upon false information,” such that the evidence seized should be suppressed pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Def.’s Mot. to Suppress ¶ 8. The two “factual” statements Defendant provides in support of this legal premise are that (1) the affidavit submitted in support of the search warrant indicated that “an informant purchased PCP from a ‘Mark’ allegedly in apartment T-2 at 106 Galveston Street, SW, within 14 days prior to March 2, 2007,” and (2) “[Defendant] denies distributing PCP to anyone from apartment T-2 at 106 Galveston Street, SW, within 14 days prior to March 2, 2007.” Id. ¶¶ 7, 8. Defendant does not argue for suppression of the evidence (or testimony related thereto) on any grounds other than Franks.

In opposition to Defendant’s argument, the government states:

As best the government can make out, the defendant argues that he is not known as “Mark,” and therefore, the information regarding the occupant of Apartment T-2 being known to the confidential source as “Mark” must constitute false information. Leaving aside the vagueness of this argument, the defendant falls far short of the necessary showing under Franks to require the Court to order that the evidence be suppressed.

Gov’t’s Resp. at 5.

The Court need not piece together exactly what constitutes Defendant’s argument to determine that Defendant has not made a substantial showing in his two-page. motion as required by Franks. Pursuant to Franks,

where the defendant 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 if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment 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 defendant by a preponderance of the *194 evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. See also United States v. Sobamowo, 892 F.2d 90, 94 (D.C.Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990); United States v. Richardson, 861 F.2d 291, 293 (1988), cert. denied, 489 U.S. 1058, 109 S.Ct. 1325, 103 L.Ed.2d 593 (1989).

Defendant in this case has not made anything approaching “a substantial preliminary statement showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” such that a hearing would be warranted. Franks, 438 U.S. at 155, 98 S.Ct. 2674. See United States v. Davis, 617 F.2d 677, 694 (D.C.Cir.1979) (defining reckless disregard for the truth as set forth in Franks as requiring a showing that the affiant entertained serious doubts as to the truth of the information given). In fact, Defendant’s motion does not include any information about the affiant, nor does Defendant refute ■ the government’s assertion that a pawnbroker receipt indicated that the Defendant has previously used the name “Mark West.” 1 While Defendant’s Motion appears to contain an assertion of innocence supported by the informant’s indication that he purchased PCP from an individual named “Mark,” it is the truth of the statements of the affiant rather than the informant that are at issue. Franks, 438 U.S. at 171, 98 S.Ct. 2674(“The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.”).

Furthermore, even if any reference to the name of the individual cited by the informant were omitted from the affidavit, the name of the individual from whom the informant made a purchase is not necessary to a finding of probable cause. See Franks, 438 U.S. at 171-72, 98 S.Ct. 2674 (“[I]f, 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.”); United States v. Allen, 960 F.2d 1055, 1057 (D.C.Cir.1992), cert. denied, 506 U.S. 881, 113 S.Ct.

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Bluebook (online)
503 F. Supp. 2d 192, 2007 U.S. Dist. LEXIS 56281, 2007 WL 2255122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-west-dcd-2007.