The opinion of the court was delivered by: Chief Judge Curtis L. Collier
On February 12, 2008, Defendant Rodney Bates ("Defendant") filed a motion to suppress evidence obtained via intercepts authorized by two electronic surveillance orders issued by this Court on September 6, 2005 and October 6, 2005 (Court File No. 249). The Government filed a response (Court File No. 251). United States Magistrate Judge Susan K. Lee issued a Report & Recommendation ("R&R"), analyzing Defendant's motion to suppress and recommending the motion be denied (Court File No. 259). Defendant objected to the R&R (Court File No. 261), and this Court now reviews the issues to make a final determination.*fn1 In accordance with the following analysis, this Court ACCEPTS and ADOPTS the R&R (Court File No. 259), pursuant to 28 U.S.C. § 636(b)(1), and DENIES Defendant's motion to suppress (Court File No. 249).
Defendant's objections to the R&R do not provide any articulation of specific errors, but rather generally restate the grounds upon which the original motion to suppress was based (see Court File No. 261). Defendant's original motion to suppress was a two-part argument, as follows: (1) the government, and subsequently the Court, relied on false information from a confidential informant, which neither the government nor the Court knew at the time was false (Court File No. 249, p. 3); and, (2) without that false information, there was insufficient additional evidence to establish probable cause upon which to base the warrant (id., pp. 3-6).
As the R&R correctly states (Court File No. 259, pp. 4-7), the case law governing the challenge of an issued and executed electronic surveillance order requires a defendant to make two showings: (1) a defendant must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the trust, included a false statement in the affidavit supporting the application; and, (2) without that affidavit, probable cause would not have existed. United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002) (citing Franks v. Delaware, 438 U.S. 154, 156 (1978)); accord, United States v. Giacalone, 853 F.2d 470, 476 (1988), cert. denied 488 U.S. 910 (1988) ("[T]he Franks Court simply held that the government affiant must reasonably believe the allegations to be true.") Defendant confirms "[i]n the case at bar, the misrepresentations were not knowingly or intentionally made by the affiant" (Court File No. 249, p. 3). As a result, Defendant has failed to satisfy the first requirement in challenging the grounds for the issuance of an electronic surveillance order. See, e.g., Stewart, 306 F.3d at 304. Because Defendant failed to satisfy the first requirement in a surveillance-order challenge, this Court need not determine whether Defendant satisfied the second requirement.
CURTIS L. COLLIER CHIEF UNITED STATES ...