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United States v. Denson

United States District Court, E.D. Louisiana

April 5, 2017

UNITED STATES OF AMERICA
v.
GREGORY DENSON

         SECTION: “J” (4)

          ORDER AND REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Suppress and Motion for Franks Evidentiary Hearing (Rec. Doc. 353) filed by Defendant Gregory Denson (“Defendant”), an opposition thereto (Rec. Doc. 358) filed by the United States of America (“Government”), a Motion to Strike Pleading in Opposition (Rec. Doc. 360) which the Court construed as a sur-reply filed by Defendant, another sur-reply filed by Defendant (Rec. Doc. 361), and a sur-reply filed by the Government (Rec. Doc. 370). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.

         FACTS AND PROCEDURAL BACKGROUND

         On January 23, 2015, Defendant and six co-defendants were indicted in a multi-count conspiracy. (Rec. Doc. 1.) The Government alleges that Defendant was the ring leader of a crew that committed multiple armed and violent home invasions of individuals they suspected to be drug dealers. (Rec. Doc. 311 at 3.) The Government further alleges that one of the crew members was caught and arrested during an attempted home invasion. Id. Defendant is charged with bonding that crew member out of jail, killing him, and having his crew assist in dumping the body into the Industrial Canal. Id.

         The instant motion arises out of a search of Defendant's home. On May 6, 2014, a Louisiana state trooper (“trooper” or “affiant”) presented an application for a search warrant in a sworn affidavit to a magistrate judge (“magistrate”) in the Orleans Parish Criminal District Court. (Rec. Doc. 353-2 at 2.) The affidavit requested a warrant to seize: “Any and all items that were taken in residential burglaries to include but not limited to TV's, X-boxes, jewelry, coins, passports, Sony video game systems and laptop computers.” Id. The affidavit also requested the warrant to search the property to seize items that had been used in the burglaries. Id. The affidavit includes five separate paragraphs, each referencing a different confidential informant (“CI”), and detailing the information provided by each CI. Although the affidavit states that each CI provided information that was slightly different, the information provided by all CIs was consistent. All five CIs provided information about Defendant's participation in multiple burglaries. Two of the CIs, including a CI (“CI-1”) who the affidavit states was a reliable informant who had provided information in the past, informed law enforcement that items from the burglaries were located in Defendant's home.

         The magistrate issued the search warrant, and the warrant was executed the same day. (Rec. Doc. 353-2 at 1; Rec Doc. 353-3 at 1.) The search yielded four televisions, an X-box, $10, 000 in cash, a purse, and jewelry. (Rec. Doc. 353-3 at 1.) Defendant filed the instant motion requesting that the Court suppress the evidence obtained during the search. (Rec. Doc. 353.) Defendant also requests an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). On March 23, 2017, the Court heard oral argument on the matter. The Court denied Defendant's motion to suppress and request for a Franks hearing in open Court, and advised the parties that it would issue written reasons.

         PARTIES' ARGUMENTS

         Defendant makes two arguments in favor of suppression. First, Defendant argues that the affidavit presented to the magistrate is hopelessly tainted by intentional misrepresentations and omissions. In particular, Defendant argues that the affidavit falsely states that two of the CIs provided the affiant with the location of other items that had been stolen by Defendant. These statements, argues Defendant, are misleading because no evidence exists to support the statement that the recovered items were connected to Defendant. Second, Defendant argues that the affidavit is so bare bones that it fails to establish probable cause.

         The Government argues that Defendant failed to meet his burden of demonstrating that the statements in the affidavit are untruthful or that the affiant made the statements with the intent to mislead the magistrate. The Government argues that, considering the totality of the circumstances, the affidavit created probable cause for the search because it relied upon the information provided by CI-1, who had provided information to the Government in the past, and was reinforced by four other CIs (CI-2 through CI-5) who provided corroborating information. Further, the Government avers that there is nothing fundamentally false or inaccurate about the affidavit's reference to CI-2 and CI-5 because both CIs had, in fact, provided information that led to the recovery of items pursuant to search warrants prior to the affidavit being created.

         LEGAL STANDARD

         I. Motion to Suppress

          In a motion to suppress, the defendant bears the burden of making specific factual allegations of illegality, producing evidence, and persuading the court that evidence should be suppressed. United States v. John Rockwell, No. 07-128, 2007 WL 2122432, at *1 (E.D. La. July 19, 2007) (citing United States v. Evans, 572 F.2d 455, 486 (5th Cir. 1978)). The Fifth Circuit utilizes a two-step process to evaluate a defendant's motion to suppress when a search warrant is involved. First, the court must decide whether the Leon good faith exception to the exclusionary rule applies. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015) (citing United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999)). The Leon good faith exception provides that evidence is admissible when it is obtained by law enforcement officials acting in objectively reasonable good faith reliance upon a search warrant, even if the affidavit on which the warrant was based was insufficient to establish probable cause. United States v. Leon, 468 U.S. 897, 922-23 (1984); United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988). “‘[A] warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has ‘acted in good faith in conducting the search.'” Leon, 468 U.S. at 922 (citing United States v. Ross, 456 U.S. 798, 823 n.32 (1982)).

         The court's analysis ends if the good faith exception applies. Moore, 805 F.3d at 593. If the good faith exception does not apply, then the court proceeds to the second step and determines “whether the affidavit established probable cause that the evidence to be seized would be found in the place to be searched, justifying the issuance of the warrant.” Id. (citing United States v. Aguirre, 664 F.3d 606, 613-14 (5th Cir. 2011)); see also United States v. Froman, 355 F.3d 882, 888 (5th Cir. 2004). “Probable cause may be established through ‘direct observation' or ‘normal ...


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