United States District Court, D. Massachusetts
CONSOLIDATED MEMORANDUM AND ORDER ON DEFENDANT’S MOTIONS TO SUPPRESS
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
The indictment underlying this case charges defendant Rojas-Camilo with conspiracy to distribute heroin and money laundering. At issue are two motions to suppress. The first challenges a search warrant directed at Rojas-Camilo’s place of business, Hidalgo Multiservice Store (HMS), in Lawrence, Massachusetts. In essence, the motion attacks the warrant for an alleged want of particularity owing to the failure of the affiant to serve an exhibit to the warrant specifying the property to be seized. The second motion attacks a Title III electronic interception warrant for misstating the viability of alternative non-electronic methods of investigation. For the reasons that follow, the motions will be denied.
The Premises Warrant
The warrant directed to the premises of HMS was supported by an affidavit attested by DEA Task Force Detective Matthew Woodman on December 17, 2014. The warrant incorporated an Attachment B that described the specific property to be seized. Rojas-Camilo complains that following the execution of the warrant (on December 22, 2014), the attending officers served only the warrant (shorn of Attachment B) and a receipt listing the actual property taken. While acknowledging that a court may, in testing the particularity requirement, construe the warrant together with any appropriately incorporated exhibits, defendant faults the executing officers for failing to satisfy “the second requirement” of Groh v. Ramirez, 540 U.S. 551 (2004), “that the supporting document be present during the search and [be] served with the warrant.” Def.’s Mem., Dkt #182 at 6. Rojas-Camilo makes a further argument that the executing officers exceeded the scope of Attachment B by seizing two flash drives from the premises of HMS despite that, in issuing the warrant, Magistrate Judge Hennessey had specifically crossed out the paragraph (No. 11) authorizing the seizure of “thumb drives . . . and other memory storage devices.”
Officers executing a search are required to have the warrant and any incorporated guidance as to the place to be searched and the items to be seized in their possession at the time of the search. The warrant not only insures that the officers remain within the parameters of what the court has defined their searching authority to include, but it also alerts the occupant of the premises being searched to the fact that the police are acting lawfully and with the requisite judicial permission. Groh, 540 U.S. at 561-562. In Groh, the case on which Rojas-Camilo relies, the warrant on its face described only the place to be searched and failed to incorporate by reference the application describing the property to be seized. Id. at 554-555. In this regard, the Court noted that “most Courts of Appeal have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.” Id. at 557-558.
Contrary to defendant’s reading of the case, however, the Court in Groh did not lay down a constitutional rule that the occupant of the premises being searched must be served with a copy of the warrant before the search is executed. (Groh involved a Bivens action and not a motion to suppress evidence). As the authoritative Professor LaFave explains, the Court said quite the opposite, see 540 U.S. at 562 n.5 (“Quite obviously, in some circumstances . . . it will be impracticable or imprudent for the officers to show the warrant in advance.”). And this, as Professor LaFave continues, “is the sum total of the discussion of the issue . . . [of the] right of the person at the search scene to learn about the warrant’s limitations.” LaFave, 2 Search and Seizure § 4.12(a) (5th ed. 2012). As the Court later clarified, “[t]he Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the ‘deliberate, impartial judgment of a judicial officer . . . between the citizen and the police, ’ . . . and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.” United States v. Grubbs, 547 U.S. 90, 99 (2006). In other words, service of the warrant is not a constitutional requirement, but a matter of rules practice. See Federal Rule of Criminal Procedure 41(f)(1)(C), (“The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave as copy of the warrant and receipt at the place where the officer took the property.”). The executing officers here, by defendant’s own admission, complied with the formalities of Rule 41 by leaving behind a copy of the warrant and a property receipt, although it is undisputed that the warrant did not include Attachment B. The omission, if it was one, would not (as Professor LaFave notes) require or justify the application of the exclusionary rule. See 2 LaFave, supra, § 4.12(a), citing United States v. Hector, 474 F.3d 1150 (9th Cir. 2007), and Hudson v. Michigan, 547 U.S. 586 (2006).
Finally, while the seizure of the flash drives exceeded the scope of the warrant (the government does not disagree), where portions of a warrant are invalid for lack of probable cause or particularity, “the infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant . . . but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized - on plain view grounds, for example - during their execution).” United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983) (en banc). The First Circuit is firmly within the partial suppression camp. See United States v. Gianetta, 909 F.2d 571, 580 n.7 (1st Cir. 1990) (“The general rule in this circuit requires suppression of only the evidence seized without probable cause [or here, proper authorization], while allowing use of the rest.”).
The Title III Warrants
The second of Rojas-Camilo’s motion is directed to related Title III warrants issued by Judge Young, the first on May 8, 2014, and, in iterations eventually involving 6 target telephones, the last of which issued on November 26, 2014. The motion contends that the affidavit sworn by Detective Woodman in the two instances directly relevant to Rojas-Camilo (Telephone #2, July 29, 2014, and Telephone #6, November 26, 2014) contained intentional or reckless misrepresentations and omissions of material fact warranting a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
While a judicial ruling on a motion to suppress is ordinarily confined to the “four corners” of the affidavit, there are circumstances in which a defendant may challenge the truthfulness of statements made by the affiant in a so-called Franks hearing. Cf. United States v. Southard, 700 F.2d 1, 7 (1st Cir. 1983) (a facially sufficient affidavit is entitled to a presumption of validity). To be entitled to a hearing under Franks, a defendant must make “a substantial preliminary showing” that an affidavit contains intentionally false or recklessly untrue statements that are material to a finding of probable cause. Franks, 438 U.S. at 155-156, 170.
[T]he challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.
Id. at 171.
If a hearing is warranted, the defendant must prove the knowing falsity or recklessness of the affiant’s statements by a preponderance of the evidence. Id. at 156. The defendant must also show that any deliberately false or reckless statement was material to the determination of probable cause. If such a showing is made the offending statement is excised from the affidavit, which is then reexamined for probable cause. Id. at 171-172; United States v. Veillette, 778 F.2d 899, 903-904 (1st Cir. 1985).
The reckless or deliberate omission of material information from an affidavit also raises a Franks issue. United States v. Rumney, 867 F.2d 714, 720 (1st Cir. 1989). As is the case with deliberate or reckless inclusions, a reviewing court should add any facts intentionally or recklessly omitted from the affidavit and determine whether the new information would have ...