Defendant prevails in his Franks challenge. The police withheld that defendant was at worst a suspect in personal use of marijuana, but made it look like he was a trafficker when they had no evidence of it. That means that the search warrant would have been far more limited and not included searching for records of drug trafficking. The warrant was also stale and the good faith exception does not apply. United States v. Swain, 2021 U.S. Dist. LEXIS 46196 (N.D. Ohio Feb. 18, 2021):
The affidavit’s probable cause showing rested on three legs 1) the Chelsea Court search; 2) the double-barreled false statement, “due to an ongoing/open narcotics investigation” the trash pull occurred; and 3) the officers’ recovery of “suspected raw/loose Marijuana and drug paraphernalia.”
The warrant that resulted was extraordinarily broad: it encompassed everything in a drug trafficker’s inventory, toolkit, and documentary and digital supplier and customer lists, and account ledgers. Were Judge O’Brien to have concluded the affidavit only showed personal marijuana use, he could not and would not have issued this warrant: it would have been impermissibly overbroad. Thus, he necessarily had to find that the defendant was a drug trafficker, not just a pot smoker.
To do so, he had to take into account and give determinative weight to each of the three components supporting his probable cause finding. Remove one, and that finding is no more solid and stable than a two-legged stool: the rest collapses.
Take away, as one must under Franks, the false statement that the two-pronged trash pull was “due to an ongoing/open narcotics investigation”, nothing is left to support an already scant and shaky (and for other reasons deficient) showing of probable cause.
The false statement was material to that finding.
. . .
To determine whether the affidavit established probable cause, I must give due deference to Judge O’Brien’s finding that such was so: I cannot substitute my own de novo assessment for his. E.g.., Enyart v. Coleman, 29 F. Supp. 3d 1059, 1093 (N.D. Ohio 2014) (Carr, J.). On the other hand, I must, for the reasons expressed above, set aside, as he did not, the affidavit’s reference to the Chelsea Court search.
When I do so, all that remains of the probable cause allegations is: 1) the officers’ discovery of “suspected raw/loose marijuana and drug paraphernalia”; 2) that officers had observed the defendant “numerous times during surveillance at the residence”; 3) the defendant was “linked to this address in a Law Enforcement Data Base”; and 4) his prior criminal record included a 2005 conviction for “felony Two (2), Robbery”; a 2005 charge of “Possession of a Weapon”; and a 2006 federal conviction and sentence for “Violent Crime/Drugs/Machine Gun”; and a 2014 conviction for “the lesser offense of Drug Abuse.”
That’s it. And it is entirely insufficient to enable the finding of present probable cause necessary to justify issuance of a warrant to search private premises. A showing of mere suspicion, such as that in Det. Brotherton’s affidavit in this case, is never enough to establish probable cause for a search warrant. E.g., United States v. Macklin, 819 Fed. App’x. 372, 375-76 (6th Cir. 2020) (quoting United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990).
Granted, judging by what the officers found when they executed the warrant, there appears to be considerable reason to believe the defendant was back in the drug trafficking business. But what officers recover when executing a defective warrant does not retroactively cure the warrant’s deficiencies and defects. E.g., United States v. Figueredo-Diaz, 718 F.3d 568, 574 (6th Cir. 2013).
In sum, the affidavit is fatally deficient: the only information suggestive of drug trafficking on the defendant’s part was stale.
