United States District Court, D. Alaska
ORDER RE FRANKS HEARING MOTION
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 41 is Defendant Ricky Allen
Blodgett's Motion for Franks Hearing Motion to
Suppress Evidence. The Government responded at Docket 49.
In
Franks v. Delaware, 438 U.S. 154 (1978), the Supreme
Court established a two-prong test for challenging the
sufficiency of a warrant affidavit. “A defendant is
entitled to an evidentiary hearing on the validity of the
affidavit underlying a search warrant if the defendant can
make a substantial preliminary showing that (1) the affidavit
contains intentionally or recklessly false statements or
misleading omissions, and (2) the affidavit cannot support a
finding of probable cause without the allegedly false
information.”[1] In United States v. Perdomo, the
Ninth Circuit outlined five requirements:
(1) the defendant must allege specifically which portions of
the warrant affidavit are claimed to be false; (2) the
defendant must contend that the false statements or omissions
were deliberately or recklessly made; (3) a detailed offer of
proof, including affidavits, must accompany the allegations;
(4) the veracity of only the affiant must be challenged; (5)
the challenged statements must be necessary to find probable
cause.[2]
Here,
Mr. Blodgett alleges that two portions of the affidavit are
false or not properly stated: (1) “The Trooper did not
inform the magistrate that no picture or copy of the xray was
retained;” and (2) “The Trooper knew the source
of the May 14, 2014, ‘tip' and that it was not
accurate as to the issue of firearms.” Mr. Blodgett
asserts that “[t]he search warrant is not valid due to
the[se] mis-statements and omissions of [Trooper]
Calt.”[3]
1.
X-Ray Photograph
In
response to Mr. Blodgett's claim, the Government asserts
that at the time the affidavit was produced, it is likely
that Trooper Calt still had the photograph in his
possession.[4] According to the Government, it was not
until a year later that Trooper Calt stated at a state court
hearing that he no longer had the photograph because he had
since replaced his phone.[5] The Government further contends that
even if Trooper Calt had not retained the photo,
“[w]hether or not a photo was retained for a later
prosecution could not possibly affect a probable cause
determination.”[6]
Under
the applicable standard, Mr. Blodgett has failed to make the
substantial showing necessary to warrant a Franks
hearing on this issue. Of the five factors outlined in
Perdomo, Mr. Blodgett fails to meet at least two.
Mr. Blodgett has failed to make a detailed offer of proof to
show that Trooper Calt's affidavit “contains
intentionally or recklessly false statements or misleading
omissions.” Trooper Calt's affidavit indicates that
he had viewed an x-ray image that appeared to show heroin in
a FedEx package; Mr. Blodgett has not challenged this
statement as a misrepresentation. Trooper Calt did not state
that he had retained the x-ray photograph, and Mr. Blodgett
has not provided any evidence that Trooper Calt made a false
statement to the contrary. Furthermore, Mr. Blodgett has
failed to show that Trooper Calt's supposed failure to
inform the magistrate judge that he did not retain the
photograph was necessary to a finding of probable cause. The
magistrate judge granted the warrant based on Trooper
Calt's manifestations that he had seen the photograph,
not that he currently possessed it. Therefore, Mr. Blodgett
cannot show that Trooper Calt's possession of the
photograph was essential to the finding of probable cause.
2.
Accuracy of the Tip
Mr.
Blodgett provides no evidence of his claims that Trooper Calt
“knew the source of the May 14, 2014, ‘tip'
and that it was not accurate as to the issue of
firearms” and that Trooper Calt “knew it was the
issue of Mr. Blodgett's mother in
law.”[7] Through these assertions, Mr. Blodgett
appears to be alleging that Trooper Calt was being dishonest
when in the warrant affidavit he stated:
On
5-13-14 the Mat-Su Drug Unit received a crimestoppers tip
that Ricky
Blodgett was dealing heroin from his residence on Beaver Lake
Road. The tipster provided several specific details about
Blodgett and the residence, that there was a six person
travel trailer where Blodgett lived and there was a house
under construction. The tipster reported that Blodgett had a
history of murder and had been to jail for heroin before. The
tipster reported that Blodgett had a shotgun, rifle and
handguns in the trailer and keeps the shotgun loaded. The
tipster reported that Blodgett was going out of state every
couple of weeks and the tipster thought that Blodgett was
either bringing it back on his person or shipping it back.
The tipster reported lots of vehicle traffic in and out of
the residence. The tipster reported that there were three
kids in the main trailer, all under ten years
old.[8]
Mr.
Blodgett's statement can be read as an allegation that
either the tipster lied about Mr. Blodgett's possession
of guns and Trooper Calt knowingly repeated that lie, or that
Trooper Calt lied about what the tipster said. Regardless,
Mr. Blodgett has not made any offer of proof to support these
claims. Nor has he shown that these supposed
misrepresentations were necessary to a finding of probable
cause. As the Government's response indicates, the May
13, 2014 tip was corroborated in other ways, including the
tipster's knowledge of Mr. Blodgett's ...