M.D.Tenn.: Getting new evidence, def succeeds in a Franks challenge after initial denial of his motion to suppress

On a motion to reconsider denial of a suppression motion with new evidence, defendant succeeds on a Franks challenge. [The court initially had concerns about officer credibility, and this cinches it.] United States v. Anderson, 2019 U.S. Dist. LEXIS 29539 (M.D. Tenn. Feb. 25, 2019)*:

This newly produced evidence, particularly considered in light of Kemp’s confusing and somewhat self-contradictory testimony and the other evidence in the record, including Troutt’s report, establishes beyond any reasonable doubt that Kemp knew when he drafted the Affidavit in support of the search warrant that Josh Hunter and Katherine Stone had purchased drugs from “L,” not Tatiana Johnson, and that the purchase took place outside of Johnson’s residence. It is apparent to the court that Kemp intentionally or recklessly failed to include this information in the Affidavit and that he either misremembered these events or lied under oath before this court.

That conclusion is bolstered by Kemp’s testimony, on cross examination, that he had attended numerous trainings on the need for a sufficient factual nexus between the suspected crimes and the place to be searched in order to justify the issuance of a search warrant. (Doc. No. 150, at 72 (“A. And … the training is to understand the law about what’s permitted for search warrants and what’s required to go inside somebody’s house? A. Correct.”).) Kemp acknowledged that, in the course of this training, he had been given Sixth Circuit case law to examine, that his training was conducted by lawyers as well as by other police officers, and that he was “familiar with … case law that talks about how you need to be able to demonstrate … some information about knowing what’s inside the house before you can get a search warrant to go inside the house.” (Doc. No. 150, at 74; see also id. (agreeing that he was familiar with the term and concept of “nexus”).) In other words, regardless of what the law might expect from a reasonably well informed police officer, Kemp’s actual knowledge of the law explains why he might omit from his search warrant Affidavit the critical information that the person selling the drugs was someone other than the person who lived at the house he sought to search, that the drug purchase took place outside that residence, and that the informants never went inside the residence. It also provided a motive to retract his testimony in this court that Hunter told him, when they drove by the residence, that “L” had “come from that house and delivered the drugs”-which was entirely consistent with Troutt’s report but inconsistent with the Affidavit and inconsistent with Kemp’s assertion that he did not know that information until later.

Based on the totality of the evidence, Kemp’s retraction of that statement, and the court’s recollection of Kemp’s demeanor while he was testifying, the court no longer finds Kemp’s hearing testimony credible. In short, the court concludes that Kemp’s Affidavit contained material knowing, intentional, or reckless falsities or omissions. Specifically, it omitted the information, known to Kemp, that the drug purchase was from the person Hunter knew as “L” and that it took place outside the residence. The Leon good-faith exception does not apply, and the evidence seized during the search must be suppressed.