Summary The defendant has made a suitable proffer of falsity that Trooper Young did not smell the odor of marijuana emanating from Thoms premises as represented in his affidavit in support of search warrant No. PA 10-56SW Issued February 22, 2010. A limited hearing on this issue is set for February 7, 2011at 9:30 A.M..
The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
ORDER REGARDING MOTION FOR HEARING
Defendant Trace Thoms moves to suppress evidence obtained as a result of the execution of a search warrant and requests the court to schedule a Franks Hearing wherein he can challenge the truthfulness of factual statements in the search warrant affidavit. See Franks v. Delaware, 438 U.S. 154 (1978). Docket 57. The motion is joined by defendant Jennifer Thoms. Docket 62. The motion to suppress and request for Franks Hearing is opposed by the government.
Docket 63. Jennifer Thoms filed a reply at Docket 83. Defendant Trace Thoms filed a reply. Docket 84. Trace Thoms moved (Docket 86) and was granted the opportunity to file an Addendum to his Motion for a Franks hearing. His Supplemental Addendum was filed at Docket 91. The government's opposition was filed at Docket 93. At Docket 102 defendant Thoms filed a Motion for Leave to Present Evidence and further requesting an evidentiary hearing on the matter. At Docket 107 the court granted the request for a limited Franks hearing with the caveat that defendant submit a preliminary showing and proffer of knowingly reckless falsehood of statement prior to the hearing. Defendant Thoms filed (Docket 116) for extension of time to file his proffer and a motion (Docket 120) to continue the Franks hearing due to family emergencies. The motion(s) to continue were granted and the limited hearing was subsequently re-scheduled to January 14, 2011 with defendant's proffer to be filed by January 7, 2011. Defendant Thoms proffer is filed at Docket 137.
Thoms attacks the warrant by arguing that Investigator Kyle Young intentionally or recklessly misrepresented facts and omitted material facts in his supporting affidavit. Pursuant to Franks the burden is on the party alleging that the affiant made deliberate or reckless misstatements to specify which statements are at issue and to make a preliminary showing that the statements were deliberately or recklessly false. The misstatements must be material and necessary to a finding of probable cause. Franks supra at 170. To meet the requirement of a substantial preliminary showing the defendant must: (1) allege specifically which portions of the warrant affidavit are claimed to be false; (2) contend that the false statements or omissions were deliberately or recklessly made; (3) make a detailed offer of proof, including affidavits, to accompany the allegations; (4) challenge the veracity of the affiant(s); and (5) show that the challenged statements must be necessary to find probable cause. United States v. DeCesare, 765 F.2d 890, 894-95 (9th Cir. 1985).
Franks has been applied to deliberate or reckless omissions that mislead the judicial officer, as well as false statements. United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985). Mere negligence or inadvertence does not constitute a Franks violation and justify a hearing. United States v. Collins, 61 F.3d 1379, 1384 (9th Cir. 1995). Misstatements or omissions in an affidavit are fatal only if made recklessly and with intent to deceive the court. United States v. Botero, 589 F.2d 430, 433 (9th Cir. 1978). Innocent misstatements that are not intentional or reckless, even if material, will not vitiate an otherwise sufficient affidavit. United States v. Hole, 564 F.2d 298, 302 (9th Cir. 1977).
If a defendant establishes a deliberate or reckless disregard of the concealment of material information by a preponderance of the evidence, and with the concealed material provided, the resulting evidence is insufficient to establish probable cause, then "the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause were lacking." Franks, supra at 156; United States v. Dozier, 844 F.2d 701, 705 (9th Cir. 1988). A Franks hearing need not be held if there is sufficient content in the affidavit apart from the challenged material to support a finding of probable cause. Franks, supra at 171-72.
Thoms submits that Investigator Young made three material misstatements and admissions, doing so deliberately or recklessly. For reasons stated below the magistrate judge concludes that only the third allegation warrants a Franks hearing.
First, he submits Investigator Young knowingly used flawed methodology thereby misinforming the court that his study revealed that the scent of marijuana in the outside air indicates with a 96% probability that a commercial grow is present. Thoms argues that the study improperly conflates a wide range of different types of "smell" cases by combining cases involving informants and other outside information with cases relying purely on smell. He argues that the study improperly conflates cases involving the smell of marijuana that was detected when standing outside an open door of a premise with cases involving the scent of marijuana allegedly detected while traveling in a moving vehicle. He claims that the study is deficient and that it fails to include cases where no search was conducted after detecting the odor of marijuana.
Second, Thoms seeks a Franks hearing based on his argument that Investigator Young deliberately or recklessly misinformed the issuing judge there is no indication that a ...