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United States v. Daniels

United States District Court, D. Maine

December 20, 2019

UNITED STATES OF AMERICA,
v.
RICHARD DANIELS, et al., Defendant.

          ORDER ON DEFENDANTS' MOTION RE: SUPPRESSION AND FRANKS HEARING (ECF NO. 333)

          George Z. Singal United States District Judge.

         Before the Court is a Motion to Suppress and for Franks Hearing by Defendants Tyler Poland, Ty Construction, LLC, & Ty Properties, LLC (together, the “Poland Defendants”) (ECF No. 333).[1] Having fully considered the filings related to the Motion as well as relevant developments noted on the docket, the Court DENIES the Motion.

         I. LEGAL STANDARD

         “A warrant application must demonstrate probable cause to believe that (1) a crime has been committed-the ‘commission' element, and (2) enumerated evidence of the offense will be found at the place searched-the so-called ‘nexus' element.” United States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015) (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)). “Probable cause to issue a warrant exists when, ‘given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'” United States v. Silva, 742 F.3d 1, 9 (1st Cir. 2014) (emphasis added) (quoting United States v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007)). A probable cause determination may be based in part on an informant's tip if the informant's credibility can be established. United States v. Ramirez-Rivera, 800 F.3d 1, 27-28 (1st Cir. 2015). An informant's credibility assessment turns on a variety of factors, including:

(1) . . . the probable veracity and basis of knowledge of persons supplying hearsay information; (2) whether an informant's statements reflect first-hand knowledge; (3) whether some or all of the informant's factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance); and (4) whether a law enforcement [officer] assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant's provided information.

Id. at 28 (quoting United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011)) (alterations in original).

         “Affidavits supporting search warrants are presumptively valid. A defendant may rebut this presumption and challenge the veracity of a warrant affidavit at a pretrial hearing commonly known as a Franks hearing.” United States v. Owens, 917 F.3d 26, 38 (1st Cir.), cert. denied, 140 S.Ct. 200 (2019) (internal citations and quotations omitted). “To get a Franks hearing, a party must first make two ‘substantial preliminary showings': (1) that a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth; and (2) the falsehood or omission was necessary to the finding of probable cause.” United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012). “Failure to make a showing on either element dooms a party's hearing request.” Id. As to the second prong, the Court must “determine whether the totality of the revealed circumstances makes out a showing of probable cause, even with false facts stripped away, inaccurate facts corrected, and omitted facts included.” United States v. Barbosa, 896 F.3d 60, 69 (1st Cir. 2018).[2]

         II. BACKGROUND

         On February 26, 2018, DEA Task Force Officer (“TFO”) Kelly applied for a warrant to search commercial buildings located at 249 Merrow Road, Auburn, Maine, as well as other locations. TFO Kelly filed an affidavit in support of the warrant application. The warrant application set forth the alleged existence and membership of a drug trafficking organization (“DTO”) led by Timmy Bellmore in Androscoggin County. It indicated that a confidential informant who had been a member of the DTO until summer 2017, “SOI-5, ” had personally built a 72-plant marijuana grow room at 249 Merrow Road sometime between 2016 and summer 2017. Another confidential informant, “SOI-3, ” observed marijuana cultivation inconsistent with personal use inside 249 Merrow in summer 2016. Tyler Poland purchased 249 Merrow from SOI-3 on November 21, 2017. According to SOI-3, this purchase involved Poland delivering the seller an additional $200, 000 in cash outside the scope of the $500, 000 contractual selling price. SOI-3 also indicated that Poland was “one of the people behind the operation at 249 Merrow” at the time of the search warrant application and told law enforcement that Poland had recently (relative to the time of the warrant application) added a second floor to one of the buildings at 249 Merrow to double his production capacity. Many of the statements by SOI-3 and SOI-5 were corroborated by SOI-1 and SOI-2. The warrant additionally documented text communications from February 2018 between Poland and a trimmer; TFO Kelly believed these related to the grow at 249 Merrow. The warrant also referenced telephone communications from Bellmore to Poland, intercepted in February 2018, in which Bellmore tells Poland about Bellmore's own apparent illegal drug activity.

         A United States magistrate judge issued the warrant, and it was subsequently executed on February 27, 2018. During the search of 249 Merrow, law enforcement seized hundreds of marijuana plants, bulk amounts of harvested marijuana, pills containing other controlled substances, and significant amounts of U.S. currency.

         III. DISCUSSION

         The Poland Defendants contend that the Court should suppress the evidence seized from 249 Merrow because the just-described warrant was deficient. Specifically, Defendants argue: (1) the warrant affidavit failed to establish probable cause; (2) the warrant application lacked particularity; and (3) the warrant is invalid pursuant to Franks. The Court addresses each of these arguments in turn.

         A. Probable Cause

         The Poland Defendants argue that the warrant affidavit does not establish probable cause because it fails to establish that illegal activity occurred at 249 Merrow after summer 2016 and relies on old information from an informant, SOI-3, who was neither reliable nor credible. However, even taking into account SOI-3's motives to provide misinformation, the circumstances detailed in the affidavit give rise to a fair probability that evidence of criminal activity would be found at 249 Merrow Road on February 27, 2018. The affidavit described a history of DTO marijuana cultivation at 249 Merrow; an unusual financial transaction in November 2017 whereby the property was transferred to Poland; communications from Bellmore to Poland in February 2018; information that Poland had recently added to the property in order to double his production capacity; and February text communications by Poland to a trimmer, seeking ...


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