United States District Court, D. Maine
ORDER DENYING MOTION TO SUPPRESS AND REQUEST FOR FRANKS HEARING
JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Claiming that an arrest and two search warrants were legally deficient, a defendant seeks to suppress evidence obtained as a result of the search and requests a Franks hearing to explore the affiant’s asserted lies and omissions. The Court rejects the defendant’s claim that the arrest and search warrants were legally deficient, declines to order a Franks hearing, and denies the motion to suppress.
A. Procedural Background
After a criminal complaint was issued against Jeffrey Paul Barnard on June 19, 2014, a federal grand jury indicted him on July 17, 2014 for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Compl. (ECF No. 1); Indictment (ECF No. 12). On February 29, 2016, Mr. Barnard filed a number of motions, including a Motion to Suppress and Request for a Franks Hearing. Mot. to Suppress and Req. for a Franks Hr’g (ECF No. 162) (Def.’s Mot.). The Government responded on March 8, 2016. Gov’t’s Resp. to Def.’s Mot. to Suppress and Req. for Franks Hr’g (ECF No. 172) (Gov’t’s Opp’n). On March 11, 2016, Mr. Barnard replied to the Government’s response. Def.’s Reply to Gov’t Resp. to Mot. to Suppress and Req. for Franks Hr’g (ECF No. 178).
B. Synopses of the Parties’ Positions
1. Jeffrey Paul Barnard’s Motion: An Overview
In his motion, Mr. Barnard asks the Court to suppress “any statements made by, or evidence seized from, the person of Jeffrey Paul Barnard, or from his home located at 303 North Street, Ellsworth, Maine, on or about June 1, 2014, or any other date, on the grounds that said statements and evidence were obtained in violation of Mr. Barnard’s Fourth, Fifth, Sixth and Fourteenth Amendment rights of the United States Constitution.” Def.’s Mot. at 1. Mr. Barnard claims that the three warrants in this case-a May 31, 2014 arrest warrant, a May 31, 2014 search warrant, and a June 1, 2014 search warrant-were issued without the requisite probable cause, and that Ellsworth Police Officer Troy Bires, who was the affiant on all three applications for warrants, “intentionally omitted and falsified information which was relevant to the issuing court’s determination of probable cause.” Id. at 1-3. Regarding his contentions against Officer Bires, Mr. Barnard requests a Franks hearing. Id. at 3.
2. The Government’s Response: An Overview
In response, the Government maintains that probable cause existed for each warrant. Gov’t’s Opp’n at 2. The Government goes on to say that when the officers attempted to execute the warrants on May 31, 2014, Mr. Barnard “shot at law enforcement officers, unlawfully possessed a firearm, and engaged in a standoff.” Id. Because Mr. Barnard committed new crimes during the execution of the warrant, it is, in the Government’s view, irrelevant whether the warrants themselves were supported by probable cause. Id. The Government urges the Court to deny Mr. Barnard’s request for a Franks hearing because he failed to provide an offer of proof in support of his request, and his unsupported accusations do not, from the Government’s perspective, justify a hearing. Id.
3. Jeffrey Paul Barnard’s Reply: An Overview
In reply, Mr. Barnard disagrees with the Government’s contention that his alleged later criminal conduct vitiates the need for the May 31, 2014 warrants to be supported by probable cause. Def.’s Reply at 1-2. He maintains that the police reports in this matter constitute reliable statements of witnesses that comply with the offer of proof requirement. Id. Finally, Mr. Barnard argues that some of the statements in Officer Bires’ affidavits were contradicted by statements in the police reports and that these contradictions justify a Franks hearing. Id. at 4-5.
II. FACTUAL BACKGROUND
A. The May 31, 2014 Arrest Warrant
On May 31, 2014, Ellsworth Police Officer Troy M. Bires swore out an affidavit in support of a request for an arrest warrant for Jeffrey Barnard. Def.’s Mot. Attach. 1 Arrest Warrant (ECF No. 162) (Arrest Warrant). After describing his experience, Officer Bires stated: “[Y]our affiant believes that probable cause exists, that the [s]aid Jeffery Barnard has committed the crime of Theft, Class E, in violation of [t]itle 17-A, M.R.S.A., Section 353, and for the crime of Assault, Class D Title 7-A, M.R.S.A., Section 207.” Id. at 2. Officer Bires explained the circumstances underlying his belief that Mr. Barnard had committed these crimes:
On 5/31/14 Your affiant responded to a civil dispute involving the removal of a [t]ractor on the property located at 303 North Street in Ellsworth;
[The] property located at 303 North Street is owned by James Thibodeau. Thibodeau [a]lso owns a Kubota tractor. Thibodeau asked James Jordan to come take his [t]ractor to different location. Jordan obtained the keys from Thibodeau and was [a]ttempting to load the tractor onto a trailer when Jeffery Barnard approached [J]ordan on the tractor and assaulted Jordan by pushing Jordan and removing the [k]eys from the tractor and going back into the camper trailer with the keys.
[I] approached Barnard and asked him about the keys to the tractor and he told me [t]hat the tractor is owned by Thidodeau but that he and Thibodeau have a [h]andshake agreement that Barnard can use the tractor. I asked Barnard to give [m]e the keys and that he had no right to keep the keys from the tractor.
[B]arnard went back inside his camper door and set a dog out telling the dog to [k]eep me back. I asked Barnard to return the keys again and he stated “fuck you, [a]rrest me but I am not giving up the keys.” Barnard then became extremely [a]gitated and has barricaded himself in the camper and is currently involved in a stand off with police.
Id. Officer Bires concludes by describing Mr. Barnard and requesting an arrest warrant. Id. The arrest warrant was issued by a Complaint Justice and Justice of the Peace on May 31, 2014. Id. at 4.
B. The May 31, 2014 Search Warrant
The May 31, 2014 request for a search warrant generally tracks the contents of the arrest warrant. Def.’s Mot. Attach. 2 May 31, 2014 Search Warrant (ECF No. 162) (May 31, 2014 Search Warrant). It seeks permission to search “[w]hite camper located on the property of 303 North Street owned by James Thibodeau and occupied by Jeffrey Barnard and Vicki Barnard.” Id. at 2. The May 31, 2014 search warrant also described Mr. Barnard as a person to be seized. Id. In addition to the information in the arrest warrant, Officer Bires added:
Barnard had made threats to burn the property down and stated that he was not going to return to jail. The Ellsworth police department has an active arrest warrant for Theft and Assault for Jeffery Barnard and the property has been secured by officers from the Ellsworth Police Department, Maine State Police, Hancock County Sheriff[’]s Office and the Bangor Tactical Team.
Barnard has an extensive criminal history including, possession of a firearm by a felon, assault on an officer, creating a standoff and displaying a dangerous weapon.
Id. at 3. The affidavit adds: “The suspect, Jeffrey Barnard is currently barricaded in the residence and has made threats of violence and also has a history of violence against police officers. Barnard is aware of police and has been asked by police to exit the property and refuses.” Id.
Also attached to Mr. Barnard’s motion is a search warrant signed by a Justice of the Peace dated May 31, 2014 at 1417 pm. Id. at 4. It describes the “Property/Premises to be searched Person to be s[ei]zed” as “White camper trailer located on the property of 303 North Street owned by James Thibodeau and occupied by Jeffery Barnard and Vicki Barnard. For the arrest of Jeffrey Barnard whom there is an active arrest warrant for.” Id.
C. The June 1, 2014 Search Warrant
By affidavit dated June 1, 2014, Officer Bires applied for another search warrant to search both a building and a person. Def.’s Mot. Attach. 3 June 1, 2014 Search Warrant (ECF No. 162) (June 1, 2014 Search Warrant). He described the building to be searched as: “White camper trailer located on the property of 303 North Street owned by James Thibodeau and occupied by Jeffrey Barnard and Vicki Barnard.” Id. at 2. He also described Mr. Barnard as being currently barricaded in the camper trailer. Id. He indicated that law enforcement wished to search for: “Any evidence of firearms, explosives including but not limited to, firearms, ammunition, empty or used ammunition casings, fuel, fuel canisters or any explosive material.” Id. He wrote that there is probable cause justifying the arrest and the property had been used to commit a criminal offense, including but not limited to “Reckless conduct with a dangerous weapon, Criminal use of Explosives and Arson.” Id. In addition to making the statements set forth in the May 31, 2014 affidavits, Officer Bires added:
On 6/1/14 the Maine State Police Tactical team executed a search warrant to remove and arrest Jeffrey Barnard at 303 North Street in Ellsworth. As a result of the arrest Barnard resisted police by firing numerous rounds of ammunition at officers and officer vehicles including throwing an [sic] a bottle that was filled with an explosive device at a police vehicle.
Barnard was injured as a result of a gunshot wound and been taken to a hospital for treatment, officer[s] are currently on scene expecting to collect evidence from the residence that Barnard was removed from.
Id. at 3.
The attachment supplied a copy of the search warrant signed by a Justice of the Peace on June 1, 2014, which authorized the search and seizure of the white camper trailer and any evidence of firearms as requested. Id. at 5.
D. The Executed Arrest and Search Warrants
Attached to Mr. Barnard’s motion is an inventory of items seized. Def.’s Mot. Attach. 4 Search Inventory (ECF No. 162) (Search Inventory). The inventory includes (1) 19 .22 caliber cartridges, which were found in the driveway of 303 North Street; (2) a .22 caliber cartridge found under the steps to the camper at 303 North Street; (3) burnt fabric, possibly a wick from a Molotov cocktail, found on the bottom step of the camper at 303 North Street; (4) a bush bar bottle, which had contained an accelerant and a wick, found in the main living area of the camper; (5) a Marlin .22 caliber semi-automatic rifle and magazine containing six .22 cartridges plus one cartridge removed from the chamber found in the main living area of the camper; (6) a wick removed from a Molotov cocktail found in the bush bar bottle located in the main area of the camper at 303 North Street; (7) twenty-four .33 American eagle rim fire cartridges plus a box and plastic found in the main area of the camper at 303 North Street; (8) an empty ammunition cardboard box and plastic American eagle .22 caliber rim fire found in the main area of the camper at 303 North Street; (9) twenty-seven .22 caliber cartridges in a plastic container found in the bedroom of the camper at 303 North Street; and (10) a metal fragment, a possible piece of a projectile, found in the garage in the front of 303 North Street. Id. at 3-6. Also attached is confirmation of Mr. Barnard’s arrest, his being shot, and his removal for medical attention. Def.’s Mot. Attach. 5 Search Warrant Inventory (ECF No. 162) (Search Warrant Inventory).
III. THE PARTIES’ POSITIONS
A. Jeffrey Paul Barnard’s Motion
Mr. Barnard begins by making his preliminary assertions that the warrants were defective. Def.’s Mot. at 1-3. He then turns to each warrant in this case and questions its legal validity. Id. at 3-34.
1. The May 31 Arrest Warrant
Mr. Barnard observes that “the issuance of an arrest warrant depends upon whether the ‘totality of the circumstances’ set forth in the warrant affidavit demonstrates probable cause.” Id. at 4 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997)). The affidavit must “establish probable cause to believe that a crime has been, or is being committed, and that the defendant has committed it.” Id. (citing Me. R. Crim. P. 4). In making this showing, the affidavit must give the magistrate a “substantial basis” upon which to conclude that there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quoting Gates, 462 U.S. at 238; Khounsavanh, 113 F.3d at 283).
After further defining probable cause, Mr. Barnard states that “to avoid suppression, a warrant application must demonstrate probable cause to believe that a particular person has committed a crime-‘the commission element’-and that enumerated evidence will likely be located at the place to be searched-‘the nexus element.’” Id. at 5 (quoting United States v. Zayas-Diaz, 95 F.3d 105, 110-11 (1st Cir. 1996)). He acknowledges several sources may provide probable cause: (1) personal observations of a law enforcement officer, or (2) information from a reliable, known informant or from an independent source that can be independently verified. Id. at 6 (citing Texas v. Brown, 460 U.S. 730, 742-43 (1983) (plurality opinion); Draper v. United States, 358 U.S. 307, 313 (1959)). He stresses, however, that when a source of information is other than the affiant, the source’s veracity, reliability, and basis of knowledge are all highly relevant. Id. at 6-7 (citing Gates, 462 U.S. at 230; United States v. Schaefer, 87 F.3d 562, 566 (1st Cir. 1996)). Finally, he admits that a “good faith” exception exists pursuant to United States v. Leon, 468 U.S. 897 (1994), but he contends that it is unavailable because Officer Bires made intentionally false and misleading statements in his affidavits in order to deceive the issuing judicial officer. Id. at 7-10.
Mr. Barnard then specifically attacks Officer Bires’ affidavits on several grounds:
a. Civil Dispute
Mr. Barnard notes that Officer Bires acknowledged at the outset of the affidavit that the matter between Mr. Barnard and Mr. Thibodeau was a “civil, ” not a criminal, dispute. Id. at 10. He stresses that civil disputes, such as rightful possession of property, must be resolved civilly, not by criminal prosecutions. Id. at 10-11.
b. Source of Information
Mr. Bernard then reviews the facts set forth in the affidavit, including the ownership of 303 North Street, ownership of the Kubota tractor, alleged conversations between Mr. Thibodeau and Mr. Jordan, and alleged interactions between Mr. Jordan and Mr. Barnard. Id. at 11. Mr. Barnard says that “[t]he source of this information is unclear.” Id. This omission leaves the magistrate, in Mr. Barnard’s view, unable to assess the reliability of the information. Id. at 11-12. Mr. Barnard contends that this is the “type of ‘bare ...