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United States v. Christiansen

United States District Court, Eighth Circuit

November 27, 2013



LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on the Findings and Recommendation (Filing No. 61)[1] issued by Magistrate Judge F.A. Gossett recommending that the Motion to Suppress Warrants (Filing No. 25) and the Motion to Suppress (Filing No. 27) filed by Defendant Larry K. Christiansen ("Defendant") be denied. Defendant filed an objection to the Findings and Recommendation along with a supporting brief (Filing Nos. 74, 75) as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). For the reasons set forth below, the Findings and Recommendation will be adopted, and Defendant's Objection will be overruled.


Defendant was charged in a three-count Indictment with conspiracy to manufacture and attempt to manufacture 100 or more marijuana plants in violation of 21 U.S.C. § 846; possessing with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841; and possession of a firearm during and in relation to a federal drug trafficking crime, in violation of 18 U.S.C. § 924(c). Defendant seeks suppression of all evidence obtained from a search of three residences owned by the Defendant and co-Defendant, Michelle C. Christiansen, on October 31, 2012, and any evidence obtained from two subpoenas of the Defendants' power consumption. Defendant requested a hearing on the issuance of the warrants for the above residences under Franks v. Delaware, 438 U.S. 154 (1978). Defendant also seeks suppression of all statements made subsequent to his arrest on October 31, 2012.

In Judge Gossett's oral findings of fact, he provided an account of the events surrounding the probable cause supporting the warrants, the execution of the warrants, and the Defendant's arrest. (Filing No. 65 at 53:15-60:13.) The Court has considered the transcripts of the hearing conducted by Judge Gossett and carefully reviewed the evidence. Based on a de novo review of the record the Court adopts Judge Gossett's factual findings. The Court provides the following facts by way of summary:

On October 30, 2012, Omaha Police Officer, Greg Hamill ("Officer Hamill") prepared an affidavit and application for a search warrant in the County Court of Douglas County, Nebraska, for the following properties: 15705 Larimore Plaza #3, Douglas County, Nebraska; 16221 Young Street, Douglas County, Nebraska; and 7361 North 122nd Avenue Circle, Douglas County, Nebraska. Officer Hamill's stated probable cause included an anonymous tip from a concerned citizen that the owners of these properties, Larry and Michelle Christiansen, might be involved in narcotics activity; surveillance on all three residences; and specific observations at the 16221 Young Street residence. The specific observations at 16221 Young Street included the smell of fresh-not burnt-marijuana, and a trash pull that contained a green leafy substance which tested positive for marijuana at the Eastern Nebraska Forensic Laboratory. Officer Hamill asserted that he found numerous items associated with manufacturing, harvesting, and packaging marijuana for distribution.

Officer Hamill also used a U.S. Department of Justice/Drug Enforcement Administration Subpoena to obtain power consumption records, customer account information and payment histories for the following addresses: 16221 Young Street, 16362 Young Street, 7361 North 122nd Avenue Circle, 7371 North 122nd Avenue Circle, 7304 North 122nd Avenue Circle, and 7226 North 122nd Avenue Circle. The four houses not belonging to Defendants were used to compare electrical usage. Based on Officer Hamill's representations in his affidavits, the warrants were issued.

Officer Hamill stated that although he is an employee of the Omaha Police Department, he was working under an agreement with the DEA at the time he executed each of the three search warrants. Officer Hamill was at the location at 15705 Larimore Plaza #3 when each of the Defendants was located there. Each of the Defendants was taken into custody and questioned, and each was given Miranda warnings. Officer Hamill testified that no threat, promise, or inducement was made, and that the Defendant made no request for an attorney. The Defendant's interview lasted about 30 minutes.


Under 28 U.S.C. § 636(b)(1)(C), the Court must make a de novo determination of those portions of the findings and recommendation to which the Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendation. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.


I. Motion to Suppress Warrants and Request for a Franks Hearing

Defendant's primary objection to Judge Gossett's Findings and Recommendation relate to the recommendation that the request to hold a Franks hearing and suppress the warrants be denied. Defendant argues that the affidavit supporting the application for warrant contained insufficient probable cause as well as material omissions and deliberate falsehoods. The Court first notes that an affidavit supporting a search warrant is presumed valid. Franks, 438 U.S. at 171. "A warrant based upon an affidavit containing deliberate falsehood or reckless disregard for the truth violates the Fourth Amendment." Morris v. Lanpher, 563 F.3d 399, 402 (8th Cir.2009) (internal marks omitted). To demonstrate that an officer's actions constitute a Franks violation, a plaintiff must: (1) submit probative evidence that the affidavit contained deliberate falsehoods or a reckless disregard of the truth, and (2) show that an affidavit reconstructed without the falsehoods and supplemented by the omitted information would not have been sufficient to support a finding of probable cause. Id. at 403. "Truthful in this context means that the information put forth is believed or appropriately accepted by the affiant as true.'" Id. at 402 (quoting Franks, 438 U.S. at 165). "A showing of negligence or innocent mistake is not enough to establish a Franks violation." United States v. Butler, 594 F.3d 955, 961 (8th Cir.2010). "The test for determining whether an affiant's statements were made with reckless disregard for the truth is whether, after viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." Id.

To be entitled to a Franks hearing, a defendant must make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [ ] the allegedly false statement is necessary to the finding of probable cause[.]" United States v. Lucca, 377 F.3d 927, 931 (8th Cir. 2004) (quoting Franks, 438 U.S. at 155-56). This showing of deliberate or reckless falsehood is "not lightly met." United States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987). "In particular, a defendant must point out specifically the portion of the warrant affidavit that is claimed to be false; and [the allegations] should be accompanied by a statement of supporting reasons. ...

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