The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Defendant Wayne Merrell ("Defendant") filed two motions to suppress (Court File Nos. 34, 35), which were referred to United States Magistrate Judge William B. Mitchell Carter to conduct an evidentiary hearing if necessary and make a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). The magistrate judge filed a report and recommendation ("R&R") recommending Defendant's motions be denied (Court File No. 45).
Defendant filed an objection to the R&R within the ten-day period, arguing the magistrate judge erred in relying on "less current, less weighty information," and as a result, the Court should sustain Defendant's objection, overrule the magistrate judge's decisions, and suppress the items discovered in the April 21, 2006 search of Defendant's residence (Court File No. 48). Alternatively, Defendant requests the court to remand this matter to the magistrate judge to conduct an immediate Franks hearing. For the following reasons, the Court will ACCEPT and ADOPT the magistrate judge's R&R, with one modification, and will DENY Defendant's motions to suppress and Defendant's request for a remand to the magistrate judge for a Franks hearing.
This Court must conduct a de novo review of those portions of the R&R to which objection is made and may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1)(C).
The recitation of facts contained in the magistrate judge's R&R represents the versions of the events in question put forth by both Defendant and the Government. Defendant has not objected to the magistrate judge's statement of the facts; therefore, the Court will ACCEPT and ADOPT by reference the magistrate judge's statement of facts in his R&R (Court File No. 47, pp. 1-6).
A. Defendant's Statements to Police
Based on testimony given at the motion-to-suppress hearing, the magistrate judge concluded Defendant was given Miranda warnings twice, in each instance immediately before Defendant made incriminating statements. Further, the magistrate judge found the evidence showed there was no coercion or trickery on the part of any agents to encourage Defendant to talk, and as such, there was no basis to conclude Defendant's statements were not voluntary. Finally, the magistrate judge concluded the statements should not be suppressed as fruits of an illegal search and/or arrest since he had already concluded the search was not illegal, and no error was committed when Defendant was initially detained and subsequently arrested. Neither party has objected to this portion of the magistrate judge's opinion. Accordingly, the Court will ACCEPT and ADOPT this portion of the R&R.
B. The Search of Defendant's Residence
The magistrate judge rejected Defendant's arguments regarding the search of his residence and concluded: (1) the affidavit at issue unquestionably provides substantial, fresh, and police corroborated information that Defendant was involved in illegal manufacturing of methamphetamine; and (2) although Defendant made a substantial preliminary showing that the affiant made an omission deliberately or in reckless disregard for the truth, he was not entitled to a Franks hearing since the affidavit supports probable cause even with the omitted information included. Defendant objects to these findings and asserts the magistrate judge erred in denying his request for a Franks hearing and erred in denying his motion to suppress the search of his residence on or about April 21, 2006. Specifically, Defendant states "the Affidavit that contained uncorroborated anonymous complaints, stale information, constitutionally vague and/or 'bare bone' allegations' [sic] failed to provide a sufficient nexus with the Defendant's residence to justify that evidence of a crime would be found at the Defendant's residence." (Court File No. 48 at 4).
In Franks v. Delaware, the Supreme Court recognized a defendant's right to challenge the sufficiency of previously issued and executed search warrants. 438 U.S. 154 (1978). In doing so, however, the Court acknowledged there is a presumption of validity with respect to the affidavit supporting the search warrant, id. at 171, and as such, a defendant is "entitled to an evidentiary hearing on the veracity of the statements in the affidavit if and only if (1) there is a substantial preliminary showing that specified portions of the affiant's averments are deliberately or recklessly false and (2) a finding of probable cause would not be supported by the remaining content of the affidavit when the allegedly false material is set to one side." United States v. Atkin, 107 F.3d 1213, 1216-17 (6th Cir. 1997) (emphasis in original). The Franks doctrine extends to omissions of information from affidavits as well. Hale v. Kart, 396 F.3d 721, 726 n.4 (6th Cir. 2005) (citing Mays v. City of Dayton, 134 F.3d 809, 815 (6th Cir. 1998); United States v. Bonds, 12 F.3d 540, 568-69 (6th Cir. 1993).
Although material omissions are subject to review under Franks, an affidavit with potentially material omissions is less likely to merit a Franks hearing than an affidavit including allegedly false statements. Mays, 134 F.3d at 815; Atkin, 107 F.3d at 1217. Consequently, when dealing with omissions of information, a Franks hearing will be granted only in rare instances. See Mays, 134 F.3d at 816 ("except in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit, and the omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts") (emphasis in original). "If a defendant does succeed in making a preliminary showing that the government affiant engaged in 'deliberate falsehood' or 'reckless disregard for the truth' in omitting information from the affidavit, the court must then consider the affidavit including the omitted portions and determine whether probable cause still exists." Hale, 396 F.3d at 726 ...