United States District Court, M.D. Louisiana
A. JACKSON JUDGE.
the Court is Defendant's Motion to Suppress (Doc.
13). The United States opposes Defendant's
Motion. (Doc. 14). The Court held an evidentiary hearing on
this matter. (Doc. 19). For the reasons set forth below,
Defendant's Motion is DENIED.
matter arises out of allegations that Agent Scott Courrege of
the Baton Rouge field office of the Drug Enforcement Agency
made affirmative misrepresentations to a judge to obtain a
search warrant. (Doc. 13-1 at p. 3). The search of the
subject premises eventually led to the discovery of drugs and
a firearm, and ultimately to Defendant's arrest for being
a felon in possession of a firearm. (Doc. 13-1 at p. 3).
Courrege was contacted by Lieutenant Eric Jones of the East
Baton Rouge Sheriffs Office who indicated that a confidential
informant ("CI") was willing to purchase six grams
of heroin from the Defendant. (Doc. 14 at p. 1). Prior to the
purchase of the drugs, the CI was searched for money or
contraband, and outfitted with an audio and video recording
device. (Id. at p. 2). The CI was given $600.00 in
cash and directed to purchase heroin from Defendant.
(Id.). Thereafter, the CI entered an apartment
located at 11555 Southfork Drive, Building 3, Apartment 1020,
and after approximately four minutes, exited the apartment
and drove to a prearranged meeting location, whereupon he
gave officers Nicholas Dittlinger and Paul Marionneux the
recording devices and a clear plastic bag containing a
substance that was later determined to be heroin.
(Id.). The CI was under surveillance for the
entirety of the operation, other than the four minutes he was
inside the apartment. (Id.).
search warrant was applied for and granted. (Doc. 13-1 at p.
2). In the affidavit attached to the search warrant Agent
Courrage attested that he "later-reviewed the video and
audio surveillance device that [the CI] was equipped with at
the time of the buy" and that ¶i]t is clear that
Clark weighed, packaged, and sold the heroin to [the CI] in
the apartment." (Id.).
Court held an evidentiary hearing in this matter. (Doc. 19).
At the hearing, Agent Courrage testified that he could not
see Defendant's face from the video, and that he could
not identify the Defendant by the video alone. Agent Courrage
testified that while conducting surveillance, he noticed
heavy foot traffic in and out of the apartment, which based
on his experience as a law enforcement officer, was
consistent with illegal drug activity.
Courrage further testified that the CI was shown a photo of
Defendant, recognized Defendant, and told the investigators
that Defendant was the one who sold him the heroin. Agent
Courrage also testified that although the identity of the
person packaging and selling the heroin was not clear, he was
able to reasonably identify Defendant by his vehicle,
Defendant's voice, and the CI's statements.
argues that based on the quality of the video and audio
recordings, it is impossible to identify who was in the
video, and that is was an intentional misstatement to claim
that it was "clear" that Defendant was the one who
sold the heroin. Defendant further argues that if the alleged
misstatement is excised from the affidavit, the remaining
claims are insufficient to support the issuance of a warrant.
successfully challenge a warrant on the grounds of its
underlying affidavit, a defendant must make 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." Franks v. Delaware, 438 U.S. 154,
155-56 (1978). Defendant bears the burden to make this
showing. United States v. Cavazos, 288 F.3d 706, 710
(5th Cir. 2002). Defendant must show "by a preponderance
of the evidence that the misrepresentation was made
intentionally or with reckless disregard for the truth."
United States v. Gallegos, 239 Fed.Appx. 890, 895
(5th Cir. 2007). The search warrant must be voided if a
defendant establishes the false statement by the
preponderance of the evidence, and that without the false
statement the affidavit is insufficient to establish probable
cause. Id. at 156.
only statement Defendant claims was false was Agent
Courrage's statement asserting that it was
"clear" that Defendant was the person who sold and
packaged the heroin. However, Defendant ignores the context
in which the statements in the affidavit were made. The