IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CASE NO.xxxxxxxxxxxxxx

UNITED STATES OF AMERICA,

Plaintiff,

xxxxxxxxxxxxxxxxxxxx,

Defendant.

MOTION TO SUPPRESS EVIDENCE

The Defendant, xxxxxx, through his attorney, Virginia L. Grady, Assistant Federal Public Defender, requests this Honorable Court to enter an order suppressing the evidence which was seized in this case as a result of the illegal search of 920 E. 18th Avenue, Apartment #'6, Denver, Colorado. This motion is filed pursuant to Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527 (1983); United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L.Ed.2d 677 (1984); and Franks v. Delaware, 438 U.S. 154, 54 L.Ed.2d 667, 98 S.Ct . 2674, 57 L.Ed.2d 667 (1978) The Defendant submits that the affidavit which was submitted in support of a search warrant issued by a Denver County Court Judge did not on its face contain sufficient information to establish probable cause; reliance by the affiant on the judge's probable cause determination was not objectively reasonable or founded in good faith. The Defendant submits that the affiant knowingly misrepresented some of the few material facts which constituted his application for the search warrant. Moreover, the Defendant submits that affiant knowingly withheld information which would have negated any indicia of probable cause. Finally, the Defendant submits that the affiant executed the search warrant with information that the controlled substances sought through the warrant application were no longer located in the place to be searched.

The Defendant states that the search warrant application was conceived, drafted and executed in bad faith and in violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution. The Defendant requests an evidentiary hearing and in support thereof has attached the Affidavit of Federal Public Defender Investigator Aura Lee Wymore. The affidavit is attached hereto and identified as Exhibit A. The affidavit sets out evidence of the material misrepresentations, falsehoods and omissions of fact which were knowingly made by the affiant and with reckless disregard for the truth.

I. FACTS

1. The search warrant was executed at approximately 10:55 a.m. on January 25, 1995. The investigation which preceded the application for the search warrant was conducted by members of a multi-jurisdictional investigative team, including: FBI Special Agent Clyde Langley, CBI Special Agent Patrick Maroney, Aurora Narcotics Detective Mark E. Finnin and Denver Narcotics Detective Patrick Fitzgibbons. As a result of the search, officers and agents seized approximately two ounces of crack cocaine and a .357 magnum handgun.

2 The search was executed pursuant to a "no-knock" warrant issued by Denver County Court Judge Kathleen Bowers on January 24, 1995. The search warrant was authorized based upon an affidavit submitted by Denver Police Department Narcotics Detective Patrick Fitzgibbons. The search warrant affidavit is attached hereto and identified as Exhibit D. The search warrant which was issued as a result of the affidavit is attached hereto and identified as Exhibit B-1.

3. The sole source of the information contained in the affidavit came from a person identified as a "first time, confidential informant. This person has since been identified as xxxxxxxxxxxxxxxxxxxx.

4. The word "reliable" does not appear in the affidavit.

5. The.affidavit in support of the search warrant contains no independently collected evidence or information which would have supported a conclusion that this informant was reliable (i.e., public service records, cable t.v. records, U.S. West records, landlord interviews, surveillance information, etc.).

6. The affidavit contains no information from other sources to suggest that the Defendant was involved in criminal activity at this location (i.e., calls from Crime Stoppers, complaints from neighbors, controlled purchases of narcotics, surveillance, monitored telephone calls, etc.).

7. The following information was knowingly withheld from the affidavit in support of the search warrant:

a) The informant, xxxxxxxxxxxx, provided the information immediately after being arrested on January 24, 1995 for distribution of crack cocaine.

b) At the time of her arrest, the inf ormant was in possession of crack cocaine. The informant admitted that she had used crack cocaine within the last 12 hours.

c) During the interview with members of the multijurisdictional investigative team, the informant collapsed and had to be rushed to Aurora Presbyterian Hospital.

d) Just two weeks prior to the informant's arrest, she was the target of a controlled purchase. However, the controlled purchase could not take place because the informant, Denise , was unconscious and could not be revived.

e) During her interview immediately following her arrest on January 24, 1995, the informant provided a telephone number to 920 E. xxxxxxxxxx, Apartment #6. FBI Soecial Agent Clyde Langley contacted U.S. phone security and determined that the telephone number did not belong to the Defendant.'_______________

During her interview, the informant claimed that the Defendant lived at xxx E. 18th Avenue, Apartment #6 with a woman named "Gina." The telephone number provided by the informant to FBI Special Agent Clyde Langley listed to a "Renee Jones."

f) After being treated at Aurora Presbyterian Hosr)ital, the informant was released and has not been prosecuted.

8. The following information constitutes what is currently known to be material misrepresentations of fact and/or material falsehoods contained in the warrant application:

a) Officer Mark Finnin was not, as represented in the affidavit, "contacted by" the confidential informant. This information suggests that it was the informant who initiated the contact with law enforcement. To the contrary, the nature of this "contact" was the informant's arrest.'

b) The identity of "Candy" was not, as indicated in the affidavit, derived from Metro Gang Task Force records and files. This information suggests that the affiant was able to corroborate the information provided by the informant from some independent collection of ,intelligence." To the contrary, officer Mark Finnin will testify that the Task Force was not in possession of a full name for the person known as "Candy" and that it was who claimed that "Candy" was xxxxxxxxx.

9. Finally, after the search warrant was obtained and just ten minutes before it was executed, Detective Finnin obtained information through a monitored telephone conversation that there were no drugs at xxxx. 18th Avenue, Apartment #6.

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2 Records indicate that the interview of the informant began in her home, minutes after numerous law enforcement personnel entered her home to execute a search warrant. The inf ormant,xxxxx, was taken by Officer Finnin to the basement where she was provided blankets to cover he--self and where questioning commenced.

II. ARGUMENT AND APPLICABLE LAW

The warrant issued by Denver County Court

Judge Kathleen Bowers was not supported by probable cause.

10. Probable cause to issue a search warrant is found by looking at the "totality of the circumstances" contained within the four corners of the affidavit. Gates, 462 U.S. at 237.

11. A basis of knowledge, veracity and reliability are all factors which are relevant to the probable cause determination. However, a deficiency in one factor can be compensated for by a strong showing in another factor. Id. at 230.

12. Magistrates making probable cause determinations must be careful not to simply ratify factual allegations without some showing of reliability on the part of the source. Jaben v. United States, 381 U.S. 214, 224-225 (1965) (quoted with approval in Gates, 462 U.S. 213, 230, n.6). A failure to ensure that affidavits contain more than "bare bones" conclusions is an abdication of the duty of the issuing judge. Gates., at 239.

13. The duty of this Court in reviewing the affidavit is to ensure that the issuing magistrate had a "substantial basis for concluding that probable cause existed.'' Gates, at 214.

14. The affidavit submitted in support of the search warrant in this case begs for information which could have corroborated the information supplied by this ''first time confidential informant." There is virtually nothing in the affidavit which would allow a conscientious judge to conclude that this informant was providing the information from a real life experience.

15. The fact that the affiant provides a detailed description of the building exterior wherein the informant claims she had been to buy drugs lends nothing useful to the determination of probable cause. Moreover, the informant's brief and vague description of parts of the inside of the apartment is also useless without some other evidence that she wasn't making it all up.

16. In this case, there were endless ways in which the affiant could have attempted to corroborate the informant's information, and yet the affidavit contains no such corroboration.

17. There was simply no rational basis for the issuing Denver County Court Judge in this case to believe that the information before her supported a finding that this informant was being truthful and was basing her accusations on an actual, personal experience.

Having nevertheless obtained the search warrant fi-om

the judge, the inquiry shifts to whether the officers

and agents relied on the warrant in good faith.

18. In United States v. Leon, 468 U.S. 897, 920 (1984), the Court held that evidence seized pursuant to an invalid search warrant would nevertheless be admissible "when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope." However, the "good-faith exception" does not apply if its application would allow the purpose of the exclusionary rule to be circumvented (i.e., deterrence of police misconduct.) Hence, Leon says:

Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth.Id. at 923.

19. There are four distinct circumstances in which the good faith exception does not apply. They occur when:

a) Reliance on the warrant was not objectively reasonable.

b) The magistrate wholly abandoned her judicial role when issuing the warrant.

c) The police were "so lacking of probable cause" that official belief in the existence of probable cause was entirely unreasonable. (See, Brown v. Illinois, 422 U.S. 590, 611 (1975), (quoted with approval in Gates.))

d) The warrant itself is so facially deficient that the executing officers cannot presume it to be valid.

20. Here, the Defendant submits that the first three exceptions to the good faith exception apply. The 'act that the magistrate in this case wholly abandoned her judicial role is apparent on the face of the affidavit itself. The facts which support the Defendant's argument that the executing officers acted in bad faith are the same facts which the Defendant submits in support of his argument that violations under Franks v. Delaware have also occurred. However, if this Court determines that the affidavit, on its face, is void of probable cause, there is no need to conduct a Franks analysis.

21. The evidence of bad faith currently known to the Defendant is outlined in the first three paragraphs of this motion. The Defendant submits that these misrepresentations and falsehoods are evidence at best, of the affiant's reckless disregard for the truth and his obligations under the law. The affiant cannot claim that his reliance on the judge's signature was objectively reasonable when his presentation of the facts within the affidavit was not.

22. Moreover, the Defendant intends to show that the affiant is a seasoned veteran of the Denver Police Department and particularly of the Vice and Narcotics Unit. He has prepared many, many search warrant applications. He actively participated in the investigation which led to the arrest of xxxx in this case. He participated in the execution of the search warrant at xxxxx, home as well as the execution of the search warrant at xxxxx. 18th Avenue, Apartment #6. In other words, he was not brought into the case by officers from other jurisdictions for the sole purpose of obtaining a search warrant on a Denver property.' Therefore, the affiant here

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3 It is unknown why the search warrant was not sought in federal court since the investigative team included a federal agent.

was not only an experienced narcotics detective, but well-versed in the facts developed through the investigation which preceded the execution of the warrant.

23. Even if it is possible to conclude that the affiant did not act with a reckless disregard for the truth, he still cannot benefit from the "good faith exception." In United States v. Leake, 998 F.2d 1359 (6th Cir. 1993), the court found that a search warrant affidavit did not support the magistrate's finding of probable cause. There, the informant had stated that he had been inside the Defendant' s garage and had personally observed marijuana plants. The affiant stated that the informant had seen the plants recently and was familiar with marijuana plants based upon his own prior use. But, like the affidavit in this case, the Leake affidavit did not contain any information to corroborate the informant's story. There was no information to suggest that the informant was reliable. The court held that "a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at 1367. 4

III. ANALYSIS UNDER FRANKS

24. If the Court finds that the affidavit contains information which would support a finding of probable cause, the Defendant submits that probable cause is negated when considered in light of the material misrepresentations, misstatements of fact and falsehoods.

25. In Franks v. Delaware, 438 U.S. 154 (1978) , the Court held that a defendant may challenge the validity of an affidavit and is entitled to an evidentiary hearing if the veracity challenge

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4 Cf. United States v. Czuprvnski, 8 F.3d 1113, 1117 (6th Cir. 1-093) (where the court upheld execution of a search warrant on the basis that the affiant's reliance was "objectively reasonable." However, the court noted that there had been no evidence offered to impugne the affiant.)

is supported by a specific offer of proof with affidavits. The challenge must allege a deliberate falsehood or a reckless disregard for the truth. If the allegations are proven, the warrant is to be examined for a finding of probable cause absent the false statements. Id. at 172.

26. In Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990), the court held that the sufficiency of a warrant may also be challenged where the affiant knowingly omits material facts from the warrant application. The same procedure as that outlined in Franks must be followed in order to secure an evidentiary hearing. If the omissions of material facts are proven by a preponderance of the evidence, the affidavit is to be examined as though the omitted facts had been included. Id. at 582, n.13. If the omitted information negates probable cause, or "casts doubt" on probable cause, the evidence may be suppressed. United States v. Ippolito, 774 F.2d 1482 (9th Cir. 1985); United States v. Dennis, 625 F.2d 782 (8th Cir. 1980).

27. The measure of reckless disregard may not, alone, be drawn from the facts that the omitted information is "critical" to the probable cause determination. LaFave, Search and Seizure, 2d Ed. � 4.4, 1993 Supplement. However, if the omission is accompanied by a misstatement, the rule of deletion should apply. id.

28. Once the material misrepresentations of fact are deleted or the material omissions of fact are added to the challenged affidavit, the probable cause analysis must follow the "totality of the circumstances test" set out in Illinois v. Gates, supra. However, the court in Gates also warned that the magistrate must still be provided with enough information to allow him to determine whether he is simply being provided with the "bare conclusions of others." Id. at 239.

29. For example, in United States v. Ofshe, 817 F.2d 1508, 1513 (11th Cir. 1987), the court held that omission of the informant's criminal record did not negate the probable cause established in the affidavit since the affidavit also stated that the informant had previously been proven reliable and had provided information which led to arrests and/or seizures.

30. In contrast is United States v. Bishop, 890 F.2d 212 (10th Cir. 1989), where the court was called upon to analyze an affidavit where there was. little basis on which to determine the informants reliability.

In this case, there were no predictions concerning the defendant's, future activity. The anonymous informant did not disclose the basis for his belief that the defendant had robbed the bank. The informant had not established a track record of supplying accurate information. None of the information disclosed by the informant, and confirmed by the agents, was of the type unavailable to one without special knowledge of the criminal activity. If the information supplied by the anonymous informant were the only basis -'or the warrant, then it would lack probable cause.id. at 216.5

31. Here, the Government cannot now provide extraneous information to substantiate the reliability of Denise or the information which is attributed to her. United States v. Bertrand, 926 F.2d 838, 841 (9^th Cir. 1991). Likewise, the boiler plate language contained in the first two and one-half pages of the affidavit contribute nothing to a finding of probable cause. United States v. Ashley, 876 F.2d 1069 (lst Cir. 1989).

32. Finally, this analysis also ends with an inquiry into whether the affiant and the other executing officers should benefit from the "good faith exception" under Leon. This analysis cannot ignore the fact that, just ten minutes before this warrant was executed, the investigative team developed information through a monitored telephone call that there were no longer any drugs at xxx E.18th Avenue, Apartment #6. Therefore, the affiant and the rest of the members of this multi-jurisdictional investigative team were

on notice that they no longer had any reason to search this address. The Defendant submits that to uphold the search warrant in this case after the blatant misconduct of the Government's agents would circumvent the purpose of the exclusionary rule. The evidence should be suppressed.

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5 The affidavit in Dishov was ultimately upheld, since the defendant did not meet his Franks challenge and reliance on the warrant fell under the "good faith exception."

Respectfully submitted,

AFFIDAVIT OF AURA LEE WYMORE

AFFIDAVIT OF AURA LEE WYMORE

I, Aura Lee Wynore, being duly sworn and deposed, state the following:

1. I am an Investigator for the office of the Federal Public Defender.

2. I work with Assistant Federal Public Defender Virginia L. Grady and have been assisting in the preparation of the attached Motion toSuppress Evidence on behalf of Mr. Roberts.

3. As part of my investigation, I have read approximately 173 pagesof discovery submitted by the Government in this case.

4. I have also reviewed a copy of the transcript of the preliminary hearing held in this case.

5. The facts contained in this affidavit were discovered through my review of the discovery, the transcript of the preliminary hearing and related investigation.

6. xxxxxxxxxx, the informant in this case, distributed crack cocaine during several controlled purchases to another confidential informant working for the Aurora Police Department. One of these controlled purchases was scheduled to take place on January 11, 1995. When the informant who worked for the Aurora Police Department went to xxxxxx home for the transaction, she found that Denise was unconscious in her bed. The informant attempt to revive Ms. , but to no avail.

7. Denise was arrested on January 24, 1995 during the execution of a search warrant at her home, which was located at 5551 Wheeling Street, Aurora, Colorado. Upon entering ' home, officers found in her bedroom, lying on her bed. Wedged beneath ' mattress were two aspirin bottles. The aspirin bottles contained crack cocaine and not aspirin.

8. As soon as was identified, she was taken to her basement by officer Mark Finnin. It is unknown what, if anything, was promised to Ms. during her interview in the basement. However, it was during this interview that identified "Candy" as the person who provided her with crack cocaine.

9. During the interview with Denise , Ms. admitted that she had smoked crack cocaine late in the evening on January 23, 1995. apparently claimed that she had flushed the remaining crack cocaine down the toilet. told Detective Finnin that she did not know that she had any more crack cocaine left.

10. told Detective Finnin that she had acquired the crack cocaine from "Candy" the night before at a place she described as. "Candy's apartment." claimed that she had gone to the apartment with a woman by the name of Brenda Wyatt. Brenda Wyatt was arrested in Denise ,' home during the execution of the search warrant on January 24, 1995. This affiant does not know whether Brenda Wyatt was questioned about the claim that she accompanied Denise to "Candy's" apartment the night before.

11. During this same interview with Denise , claimed that she had agreed to sell crack cocaine for "Candy" in order to pay off a debt which her son owed to "Candy.'' claimed that "Candy" would not let her stop working for him. claimed that she purposefully began using crack cocaine in

order to convince "Candy" that she was unfit for the job. However, when waited until after she left Candy's on the night of the 23rd before she decided to smoke that last quantity of crack cocaine.

12. also claimed that she sold approximately $10,000 worth of crack cocaine every month for "Candy.'' It is unknown how this quantity of money is related to the "debt" which claimed was her entire reason for selling crack cocaine.

13. When the interview in ' basement was concluded, she was then taken to the Aurora Jail for processing. While at the Aurora Jail, collapsed and was taken to Aurora Presbyterian Hospital.

14. I have reviewed the affidavit in support of the search warrant for 920 E. 18th Avenue, Apartment #6. This affidavit does not contain any of the foregoing information regarding the circumstances of the "contact" with Denise .

15. At some point during the interview with on January 24, Special Agent Clyde Langley contacted U.S. West phone security and obtained a listing on the telephone number which provided. The address listed on the telephone number was 920 E. 18th Avenue, Apartment #6. However, the telephone number was listed to a "Renee Jones." had named only "Candy" and "Gina" as the people living at 920 E. 18th Avenue, Apartment @r6.

16. The search warrant affidavit dos not mention this information received from U.S. West phone security.

17. Between approximately 8:45 p.m. on January 24 and approximately 10:45 a.m. on January 25, Denise made three monitored telephone calls to "Candy" at 920 E. 18th Avenue. During this last telephone call, attempted to arrange a purchase of "a half of powder. 11 During this conversation, which was recorded, "Candy" told that he didn't have any and that "as soon as you get rid of some that I can go get some."

18. A report by Officer Finnin states that "based on this information [referring to the above telephone conversation wherein "Candy" stated that he didn't have any] , officers and agents of the Metro Gang Task Force along with officers from the Denver Police Department executed the search warrant at 920 E. 18th Avenue. After the execution of the search warrant at 920 E. 18th Avenue, Apartment -ru6, was taken back to the Aurora City Jail to complete processing which was interrupted by her collapse the night before. was then released. It is unknown why, given the numerous controlled purchases between and another confidential informant during the month of January, was released.

19. The affidavit prepared by Detective Fitzgibbons does not mention the admitted use of crack cocaine by the informant the night before her interview with Detective Finnin. The affidavit does not contain any information detailing or explaining the extent of the informant's drug use.

20. Finally, at the time of Denise ' arrest, the members of this investigative team had no information from their "Metro Gang Task Force records and files" to link a complete given name with the street name "Candy." Detective Finnin has testified that this information came from Denise and specifically nof from the task force records.

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