Defendant showed enough to get a Franks hearing. United States v. Roman, 2017 U.S. Dist. LEXIS 167167, 2017 WL 4517963 (D. Mass. Oct. 10, 2017). “Following the Franks hearing—which occurred on multiple days spread out between November of 2017 and January of 2018—the court will grant Defendant’s motion to suppress as to the search of his business. The court finds the Government committed a series of easily avoidable errors which, combined with the admittedly high risk of the harm that occurred here, amounted to reckless disregard for the truth. In addition, the court finds that the “reformed’ affidavit fails to establish probable cause to search Defendant’s business. As a result, the warrant to search Defendant’s business ‘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 156.” United States v. Roman, 2018 U.S. Dist. LEXIS 65274 (D. Mass. Apr. 18, 2018):
In light of these findings, the affidavit involves both two misrepresentations (the false statements attributed to CS) and an omission (the failure to divulge CS’s January 14, 2014 written statement). The court next must decide whether these missteps were made with reckless disregard for the truth. “[T]he Supreme Court in Franks gave no guidance concerning what constitutes a reckless disregard for the truth in fourth amendment cases, except to state that ‘negligence or innocent mistake [is] insufficient.'” Tanguay, 787 F.3d at 52 (quoting United States v. Davis, 617 F.2d 677, 694, 199 U.S. App. D.C. 95 (D.C. Cir. 1979)). Although the First Circuit has provided some additional clarification—for example, explaining that “[r]ecklessness may be inferred from circumstances evincing obvious reasons to doubt the veracity of the allegations,” Arias, 848 F.3d at 511 (quoting Ranney, 298 F.3d at 78)—these statements on their own remain somewhat vague. Recklessness and negligence, though, are established legal concepts outside of the Franks context. Therefore, in addition to the binding language set forth in Franks and its progeny, the court can also look to related case law for guidance.
The court finds Defendant has carried his burden, by a preponderance of the evidence, of demonstrating recklessness. McGrath, Alberti, and (to a lesser extent) Smith committed a number of easily preventable errors—any one of which, on its own, may have only constituted negligence. However, the court finds that the cumulative effect of these errors—especially considering the acknowledged risks of harm flowing therefrom—amounts to recklessness under these circumstances. These errors include, among others: the failure to retain or obtain a copy of CS’s January 14, 2014 written statement for inclusion in the DEA case file, despite the fact that Alberti typed the statement in McGrath’s presence; the failure to inform Smith of CS’s written statement and/or its content—specifically, that CS received the kilograms of cocaine (the seizure of which triggered the Gonzalez investigation) at 712 Boston Road in Springfield; the failure to reference CS’s written statement in any DEA report; and the failure of McGrath and Alberti when reviewing the affidavit to alert to (a) the lack of reference to CS’s written statement (or its content) or (b) the contradictory statement that the four kilogram drug transaction occurred at TWC Auto Body. There were also a number of less egregious errors which, although not determinative, support an inference that the investigation acted with reckless disregard for the truth in general. For example, in the affidavit Smith falsely quoted Defendant as using the word “dry” during a recorded meeting and then highlighted the importance of this misquoted word in the next sentence. Smith (along with McGrath and Alberti) failed to notice and follow up on an FBI report, added to the attachment tab in the DEA case file on February 4, 2014, which made reference to CS’s written statement. The DEA agents also failed to document the information CS provided while cooperating as well as their prior surveillance of CS, TWC Auto Body, and Defendant. Moreover, the decision by the Government to forgo specificity by using a single affidavit to apply for warrants at different locations is inconsistent with the level of care and attention the probable cause standard should generate.
In an analogous context, the First Circuit has explained that “[t]he distinction among such categories as ‘negligence,’ ‘reckless or callous indifference,’ and ‘intentional’ conduct can be elusive. According to general tort principles, however, a central distinction among these categories involves the actor’s degree of certainty that negative consequences will result from his act or omission.” Germany v. Vance, 868 F.2d 9, 18 n.10 (1st Cir. 1989). In this case, the court finds the Government witnesses generally credible; they testified with impressive candor in a forthright way demonstrating respect for the integrity of the judicial process. However, their own testimony also demonstrates their understanding of the high risk of harm associated with the key errors committed here. Each witness acknowledged that a confidential informant’s written statement regarding the location of a drug transaction with a target is a vital piece of evidence and, as such, it is particularly important to maintain or at least accurately summarize it in the case file so other agents would be aware of it. The dysfunctional engagement of FBI and DEA, following CS’s decision to cooperate, is gleaned by the court to have been obviously recognized by the agents—as evidenced through their testimony.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)