United States District Court, D. Kansas
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
JULIE A. ROBINSON, District Judge.
This matter is before the Court on Defendant Juan Manuel Lopez-Garcia's Motion to Suppress Evidence (Doc. 113). On June 16-17, 2015, the Court held an evidentiary hearing on the motion to suppress. Having reviewed the evidence and arguments presented by the parties, the Court is now prepared to rule. As described more fully below, the Court denies Defendant's motion to suppress.
I. Factual Background
On September 3, 2014, Magistrate Judge O'Hara approved a search warrant for 435 Shawnee Road, Kansas City, Kansas, based on an Affidavit in Support completed by FBI Special Agent Daniel M. Hajek. Agent Hajek's affidavit recited facts learned during a lengthy investigation that gave him probable cause to believe controlled substances, including but not limited to methamphetamine, cocaine, and crack cocaine, and other items related to the sale, distribution, and manufacture of controlled substances, would be found at that address. In addition to evidence derived from other investigatory tools, Agent Hajek relied on pole camera surveillance from outside the residence. The pole camera recorded activity between August 18, 2014 and September 4, 2014. In the affidavit, Agent Hajek recounts activity on August 22, 27, and 31, 2014, which is set forth in paragraphs 21-23 of the affidavit:
21. According to pole camera surveillance on 08/22/2014, a white Cadillac Escalade from which Saucedo-Avalos sold methamphetamine and a maroon Chevy Malibu from which Octavio and Roberto Lara-Mojica sold methamphetamine to CHS #1, were present at 435 Shawnee Road in Kansas City, Kansas along with approximately three other vehicles. In addition, pole camera surveillance showed several other vehicles arriving at and departing from the address, stopping for brief periods of time. Based on my training and experience. I know this activity to be consistent with drug trafficking.
22. According to pole camera surveillance, on 8/27/2014, at approximately 8:15 pm, a dark sedan pulled into 435 Shawnee Road in Kansas City, Kansas. At least three hispanic males exited. Following a few brief counter-surveillance looks around the residence, the occupants quickly exited the vehicle and removed several bags from the trunk, bringing them to the front door. Two of the occupants walked around the house toward the back, while at least one other approached the front door to speak with a hispanic male at the address. Based on my training and experience, I know this activity to be consistent with the covert delivery of drugs and drug proceeds.
23. According to pole camera surveillance, on 08/31/2014, at approximately 4:27 a.m., a white Cadillac Escalade used by Saucedo-Avalos arrived at 435 Shawnee Road, Kansas City, Kansas. The vehicle backed in the driveway near the front door at the residence and up to three additional Hispanic males exited the vehicle with Saucedo-Avalos. The rear hatch of the vehicle was opened and the hispanic males entered and exited the residence. At approximately 4:40 a.m., four hispanic males walked across Shawnee Road, carrying several items behind the residence. On the morning of 09/02/2014, the white Cadillac Escalade was still backed in the driveway at 435 Shawnee Road, Kansas City, Kansas. Based on my training and experience, it appears that Saucedo-Avalos is utilizing 435 Shawnee Road as a drug storage location.
At the evidentiary hearing, Agent Hajek testified about the pole camera footage and his statements in the affidavit. To aid himself in his testimony, Agent Hajek referenced the pole camera video footage on the witness stand as he testified. The Government submitted the pole camera footage in video form; Defendant presented screen shots from the pole camera footage.
In his motion to suppress, Defendant requests a Franks v. Delaware  hearing, alleging that Agent Hajek omitted material information and made representations about the pole camera footage in the search warrant affidavit that were intentionally false, or made with reckless disregard for their truth, and thus the evidence obtained at 435 Shawnee Road must be suppressed. Franks held that a search warrant based on an affidavit that includes knowing and intentionally false statements, or statements made with reckless disregard of the truth, may void the warrant. Upon a showing of falsity by a preponderance of the evidence, the reviewing court is to set aside the false material, and hold a hearing to determine whether the remaining information supports probable cause to believe evidence of a crime would be found at the place to be searched. The standards under Franks also apply to material omissions.
In order to obtain an evidentiary hearing under Franks, a defendant's "attack must be more than conclusory and must be supported by more than a desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by proof." Negligent inaccuracies are not sufficient to show falsity as required by Franks. 
When determining the sufficiency of the warrant after omitting an allegedly false statement, the Court views "the affidavit in a commonsense, nontechnical manner, with deference to be given in marginal cases to the prior determination of probable cause by the issuing authority." "The test is whether the facts presented in the affidavit would warrant a man of reasonable caution' to believe that evidence of a crime will be found at the place to be searched." Thus, only a probability and not a prima facie showing is the standard for probable cause. Moreover, an "inaccurate statement" will not invalidate the warrant where there are sufficient accurate statements elsewhere in the warrant that support probable cause. In applying these standards, the Court is mindful that "affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area."
The Court conducted a hearing on the motion to suppress prior to finding that Defendant demonstrated falsity by a preponderance of the evidence. As discussed below, having now considered the testimony of Agent Hajek and reviewed the pole camera footage, the Court finds that Defendant is unable to demonstrate falsity by a preponderance of the evidence. Moreover, even if the Court set aside the allegedly false material, and included the omitted material, the ...