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United States v. Mazzulla

United States District Court, D. Nebraska

December 20, 2017



          Cheryl R. Zwart United States Magistrate Judge

         Defendant Mazzulla seeks to suppress all evidence seized when the “detached garage at 1421 South Folsom, Lincoln, Lancaster County, Nebraska” (hereafter “the Folsom Street garage”) was searched on April 2, 2017 and April 22, 2017. (Filing No. 39 & Filing No. 54). Defendant argues the warrant applications submitted by Officer Anthony Gratz of the Lincoln Police Department fail to support a finding of probable cause because they do not provide a nexus between the place to be searched and alleged criminal activity. (Filing No. 55, at CM/ECF pp. 11-14). Defendant further argues that even if the applications do support a probable cause finding, Gratz included false information and concealed material information when applying for the warrants, and if corrected to include the omitted information and to remove the false information, the warrant applications failed to provide a sufficient showing of probable cause. Defendant argues the Leon good faith exception (United States v. Leon, 468 U.S. 897, 916 (1984)), cannot apply because Gratz misrepresented the facts when applying for the warrant. (Filing No. 55, at CM/ECF pp. 7-9; 32-35). Finally, Defendant claims that even assuming the warrants were valid, the recreational vehicle parked in the garage was Defendant's home, the warrants did not permit a residential search, and the officers' search exceeded the scope authorized by the warrants. (Filing No. 55, at CM/ECF pp. 27-32).

         In support of his motion and supplemental motion to suppress, Defendant submitted Officer Gratz' warrant applications along with copies of testimony provided before the state court, LPD records, Nebraska crime laboratory reports, the affidavit of Mazzulla's former counsel, and video recordings. Defendant claims this additional information, when compared to Gratz' affidavits in support of the applications to search the Folsom Street garage, provides the threshold showing for a Franks hearing. For the reasons discussed below, Defendant's motions challenging the warrants as lacking probable cause and for a Franks hearing should be denied. However, a hearing will be held on Defendant's motion to suppress the evidence found during a search of the recreational vehicle within the garage.


         A search warrant and accompanying application is considered presumptively valid. Franks v. Delaware, 438 U.S. 154, 171 (1978). And even if the judge issued the warrant in error, evidence seized pursuant to a search warrant will not be suppressed if the executing officers' reliance upon the warrant was objectively reasonable. Leon, 468 U.S. at 916. This good-faith exception does not apply when 1) the judge issuing the warrant was misled by an affiant's false statements; 2) the issuing judge wholly abandoned his or her judicial role; 3) the affidavit is so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable; or 4) the warrant is so facially deficient that the officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923.

         Defendant does not argue the issuing judge “rubber-stamped” Gratz' warrant applications. He argues the affiant officer misled the issuing judge by concealing material facts and including false statements in the applications such that the resulting warrants were not only facially deficient, but were based on material misrepresentations.

         When a defendant challenges a warrant application, a hearing is not required unless the defendant makes a threshold showing that the affiant deliberately misled the judge, and had the judge known the truth, the application would have been denied for lack of probable cause.

[T]he challenger's attack must be more than conclusory and must be supported by more than a mere 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 an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

Franks, 438 U.S. at 171. Even assuming the defendant shows information within the application was false, or that material information was omitted, the defendant is not entitled to a hearing unless he first shows that the warrant application, corrected to remove allegedly false information and to include allegedly concealed material facts, would not have supported a finding of probable cause. Franks, 438 U.S. at 170; United States v. Frazier, 280 F.3d 835, 845 (8th Cir. 2002).


         Defendant challenges the warrant application on its face, arguing there was no showing of probable cause and no reasonable officer would have relied on the warrant as authority to search the garage at issue. “[O]nly that information which is found within the four corners of the [warrant] affidavit may be considered in determining the existence of probable cause.” United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005)(citations omitted). But in this case, Defendant argues the warrant affidavits were misleading and cannot be relied upon to determine if probable cause exists.

         Upon review of the arguments and facts presented in this case, the undersigned magistrate judge finds outlining the warrant application as written, and then as corrected to reflect Defendant's arguments, would be unnecessarily repetitive. So the statement of facts below will discuss what would have been presented to the reviewing judge had the four corners of the warrant application been revised as Defendant suggests.

         THE WARRANT APPLICATIONS As Corrected for Franks Review

         The two warrant applications at issue are dated April 2, 2017 and April 22, 2017, and both authorize the search of the Folsom Street garage. (Filing No. 41-1, at CM/ECF p. 4; Filing No. 41-2 at 12).

         1) April 2, 2017 Warrant Application.

         Officer Gratz' April 2, 2017 warrant affidavit, corrected to add alleged concealed information and to delete alleged false information, stated:

• The Folsom Street garage is detached and located on the South side of an alley.
• On April 2, 2017, while investigating illegal narcotics activity, Gratz contacted Troy D. Utley. Utley had methamphetamine on his person. Utley, an informant of unknown reliability, stated his methamphetamine came from Shawndelle Burke who lived at 1010 South 10th Street, Lincoln, Nebraska (a substantial distance from the Folsom Street garage), and Burke had a half-pound of methamphetamine in her possession earlier that day. Utley stated that during past interactions, Burke possessed half- to two-pound quantities of methamphetamine, and “Rod” was Burke's source.
• Utley stated Rod resided in a utility shop near Folsom and West A Streets, and at Gratz' request, Utley pointed out the utility shop-the Folsom Street garage. Utley stated, "I don't know very much about him (Rod), " having met him only twice.
• Utley stated Burke was driving a newer red Lincoln automobile. At 4:00 a.m. on April 2, 2017, while conducting surveillance, Gratz saw a newer red Lincoln car parked in the alley behind the Folsom Street garage. Burke was not the registered owner of this vehicle.
• While conducting surveillance on April 2, 2017, Gratz also saw Richard D. Scov approach the Folsom Street garage on a bicycle. Scov entered the garage, left, and was then stopped by an LPD officer. Prior to the stop, the officer saw Scov drop some items. The items were retrieved and determined to be methamphetamine and drug paraphernalia. In response to questioning, Scov, an informant of unknown reliability, stated he was coming from Rod ...

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