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United States v. Shaffer

United States District Court, E.D. Kentucky, Northern Division, Covington

March 3, 2017



          David L. Bunning United States District Judge

         This case presents the question of whether a defendant's unsupported denial of the facts in a search warrant affidavit can trigger a Franks hearing. For the reasons stated below, the answer to that question is no.

         I. Factual and Procedural Background

         On August 25, 2016, Northern Kentucky Drug Strike Force (NKDSF) Agent Jeff Price obtained a warrant to search the residence of Defendant Matthew Shaffer. Price swore to the following facts in the affidavit supporting his warrant application. (Doc. # 27-1).

         In August of 2016, Price spoke directly with a source of information (SOI) who had been forwarded to him from the FBI. The SOI is “familiar with methamphetamine from past involvement with the drug” and informed Price that Defendant Matthew Shaffer “was trafficking in large amounts of methamphetamine.” (Doc. # 27-1 at 2). The SOI told Price that Shaffer “was a wholesale distributor of multi ounce quantities of Crystal Methamphetamine (Ice) with customers in both Northern and Western Kentucky, ” that the SOI “has been in Shaffer's residence on numerous occasions and has observed multiple ounce quantities available for purchase, ” that Shaffer “always has methamphetamine available for purchase in his residence and on his person, and also often carries a handgun due to his lucrative and dangerous activities.” (Id.) In addition, the SOI provided Price with Shaffer's address and stated that Shaffer “is [a] high ranking member of the outlaw motorcycle club ‘The Iron Horsem[e]n.'” (Id.) Price stated that the SOI “has provided information regarding drug trafficking to the FBI that has been proven true and correct through independent sources or investigation.” (Id.)

         Acting on the information received from the SOI, Price conducted an independent investigation. He identified the Defendant and the address given to him by the SOI on multiple law enforcement databases. (Id.) Price confirmed that the database information matched the SOI's physical description of Shaffer. (Id.) And Price found that Shaffer's criminal history included a pending felony charge for possession of methamphetamine in Kenton County, Kentucky, and two prior felony drug trafficking convictions in Ohio. (Id.)

         On August 24, 2016, Price retrieved the trash “placed / discarded at the curb in front of” Shaffer's residence. (Id.) He searched a bag of discarded trash and located “mail matter with Shaffer's name and the address” of Shaffer's residence. (Id.) In the trash, he also found “a small Ziploc bag containing a crystal substance residue, appearing to be crystal methamphetamine.” (Id. at 3). The residue tested positive for methamphetamine. (Id.) Price photographed the positive test and processed the Ziploc bag and mail matter as evidence. (Id.) The next day, NKDSF agents observed Shaffer outside his residence working on a motorcycle with another white male. (Id.)

         Price sought a search warrant for Shaffer's residence on August 25, 2016. (Id.) The warrant application noted that he believed there was methamphetamine, drug trafficking paraphernalia, and weapons to protect the sale of contraband in Shaffer's residence. (Doc. # 27-1 at 1). Price referenced his prior training and experience with drug trafficking investigations as support for this belief. (Id. at 3). The warrant issued that afternoon and NKDSF officers executed it that evening. (Doc. # 27-2).

         Shaffer was originally indicted on October 13, 2016 (Doc. # 8). On December 8, 2016, the grand jury returned a superseding indictment charging Shaffer with possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1), being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute a mixture containing methamphetamine in violation of 21 U.S.C. § 841(a)(1). (Doc. # 23).

         Shaffer has moved to suppress the evidence from the warrant (Doc. # 21), arguing that Price's supporting affidavit contained several falsehoods and material omissions and that the information from the SOI was stale. Shaffer also requested an evidentiary hearing to challenge the veracity of Price's statements in the affidavit under Franks v. Delaware, 438 U.S. 154 (1978). After briefing was completed (Docs. # 27, 29), the Court held oral argument on the motion (Doc. # 31) and allowed Shaffer to submit additional materials in support of his request for a Franks hearing (Docs. # 34, 40). For the reasons explained below, the request for a Franks hearing and the motion to suppress will be denied.

         II. Analysis

         A. Franks Hearing Standard

         The Fourth Amendment requires a hearing to challenge the truthfulness of the factual statements made in an affidavit supporting a search warrant “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.” Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

         Making a substantial preliminary showing of a knowing falsehood in a search warrant affidavit is a “heavy burden” for the defendant, United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990), because the affidavit enjoys “a presumption of validity, ” Franks, 438 U.S. at 171. For that reason, “the attacker's challenge must be more than conclusory and must be supported by more than a mere desire to cross-examine” to trigger an evidentiary hearing. Id. at 171-72. Instead, “[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, ” “those allegations must be accompanied by an offer of proof, ” and “[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Franks, 438 U.S. at 171-72.

         Franks is generally “inapplicable to the omission of disputed facts, ” “except in the very rare cases where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit.” Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998) (first emphasis added). As a result, “[a]lthough material omissions are not immune from inquiry under Franks, we have recognized that an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible conduct than one which affirmatively includes false information.” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997). And, in any case, “[t]he deliberate falsity or reckless disregard whose impeachment is permitted . . . is only that of the affiant, not of any nongovernmental informant.” Franks, 438 U.S. at 171-72.

         A Franks hearing is not required if the allegedly false statement in the warrant affidavit is not necessary to the finding of probable cause. Franks, 438 U.S. at 155-56. In other words, if there is sufficient content to support a finding of probable cause remaining in the warrant affidavit after “material that is the subject of the alleged ...

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