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United States v. Ferguson

United States District Court, N.D. Indiana, Fort Wayne Division

June 27, 2019

KRISTIN M. FERGUSON also known as Detroit


          Susan Collins United States Magistrate Judge

         Before the Court is a motion to suppress (DE 25) filed by Defendant Kristin M. Ferguson also known as Detroit (“Ferguson”), which has been referred to the undersigned magistrate judge for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72-1 (DE 29). The Court SETS this matter for an evidentiary hearing on July 18, 2019, at 9:00 a.m.; this Opinion and Order addresses the scope of such evidentiary hearing.

         A. Background

         Ferguson requests that evidence obtained by the search and seizure of her residence on February 18, 2019, be suppressed because: (1) the officers allegedly completed a warrantless search without her consent and used evidence obtained therein in the search warrant affidavit, which tainted the search warrant; (2) the search warrant affidavit allegedly contains false statements and omits material facts-namely, information about the informant upon which the judge could assess the informant's credibility and reliability; and (3) in executing the search warrant, the officer allegedly exceeded the scope of the warrant, resulting in the seizure of articles not described in the search warrant. (DE 25 at 1-2). Ferguson requests an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56 (1978), to examine the sufficiency of the search warrant, asserting that the affiant in the search warrant affidavit: (1) knowingly or recklessly made false statements which were necessary to the finding of probable cause, and (2) knowingly or recklessly omitted material information which if included would have negated probable cause. (DE 25 at 2).

         The government disputes Ferguson's assertion that the search of her residence violated the Fourth Amendment. (DE 27). The government argues that Ferguson is not entitled to a Franks hearing because she fails to make the substantial preliminary showing needed to overcome the presumption that search warrants are valid. The government states that if the motion to suppress is set for an evidentiary hearing, the hearing should be limited to the circumstances of the alleged protective sweep performed in Ferguson's residence. (DE 27 at 13).

         B. The Search Warrant Affidavit

         The following is a brief synopsis of the relevant facts in the search warrant affidavit signed by Officer Don Garab of the Wolcottville Police Department on February 18, 2019. (DE 25 at 4-5).

         On February 18, 2019, at about 12:00 p.m., Officer Brandon Garrison and Officer Garab performed a traffic stop of a vehicle driven by James Mitchell in Wolcottville, Indiana. Mitchell, whose driving privileges were suspended, had two small children in the car. Mitchell advised the officers that the children's mother was Ferguson, and he provided the officers with her home address. Mitchell told the officers that Ferguson was selling and using methamphetamine in her house, that he had observed large quantities of methamphetamine being sold at her house, and that prior to the traffic stop he had been at her house where he ingested methamphetamine. Mitchell also told the officers that Ferguson uses her cell phone to set up the purchase and sale of illegal substances.

         The officers transported Mitchell and the children to Ferguson's residence. Upon arrival, the officers saw a burnt marijuana cigarette outside the front door. Ferguson invited the officers inside, and the officers saw a glass smoking device that they recognized as an instrument used to ingest illegal substances. The officers asked for Ferguson's consent to search the house, but Ferguson denied the officers' request. The officers then “secured the house in order to apply for a search warrant.” (DE 25 at 4-5). While “clearing the house looking for any other occupants, ” the officers observed a safe; several more glass pipes that they recognized as instruments used to used to ingest illegal substances; and a cell phone belonging to Ferguson, which received numerous calls and text messages while the officers were applying for the search warrant. (DE 25 at 5).

         Judge Robert Kirsch of the Noble Superior Court signed the search warrant, and Officer Garab executed the warrant at 4:30 p.m. on February 18, 2019. (DE 25 at 6-7).

         C. The Law Pertaining to a Franks Hearing

         “Affidavits supporting search warrants are presumed valid.” United States v. Jackson, 103 F.3d 561, 573 (7th Cir. 1996) (citing Franks, 438 U.S. at 171). The Fourth Amendment requires an evidentiary hearing concerning the truthfulness of information included in a search warrant application only where the defendant makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” United States v. Robinson, 546 F.3d 884, 887 (7th Cir. 2008) (quoting Franks, 438 U.S. at 155-56). “These elements are hard to prove, and thus Franks hearings are rarely held.” United States v. Swanson, 210 F.3d 788, 790 (7th Cir. 2000).

         “[The Seventh Circuit Court of Appeals] has interpreted the holding of Franks to also apply to omissions in affidavits.” Robinson, 546 at 887 (citing United States v. Harris, 464 F.3d 733, 737 (7th Cir. 2006)). “Therefore, a defendant may also challenge an affidavit by showing that the affiant intentionally or recklessly omitted material information.” Id. (citing Harris, 464 F.3d at 737; Shell v. United States, 448 F.3d 951, 958 (7th Cir. 2006)). To obtain a Franks hearing based on material omissions, “the defendant must . . . show that if the deliberately or recklessly false statements were omitted, or if the deliberately or recklessly misleading omissions included, probable cause would have been absent.” United States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013) (citing Franks, 438 U.S. at 171-72).

         “Allegations of negligent or innocent mistakes do not entitle a defendant to a hearing, nor do conclusory allegations of deliberately or recklessly false information.” Id. at 508. “The defendant must identify specific portions of the warrant affidavit as intentional or reckless misrepresentations, and the claim of falsity should be substantiated by the sworn statements of witnesses.” Id. (citing Franks, 438 U.S. at 171). “Ordinarily an omission from a warrant affidavit is considered ‘material' if the court would not have authorized the warrant had it known the omitted facts.” United States v. Owens, No. 16-CR-38-JPS, 2016 WL 7079609, at *5 ...

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