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United States v. Fisher

United States District Court, D. Nevada

June 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JUSTIN ANTHONY FISHER and JOSHUA RAY FISHER, Defendants.

          ORDER ACCEPTING AND MODIFYING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS (ECF NOS. 41, 146)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         Defendants Justin Anthony Fisher and Joshua Ray Fisher filed a motion to suppress evidence seized during the November 21, 2016 search of the residence at 10432 Burkehaven Avenue, in Las Vegas. ECF No. 41. Magistrate Judge Foley conducted an evidentiary hearing, after which he recommended that the motion to suppress be denied. ECF No. 146. The defendants filed an Objection to that recommendation (ECF No. 147) and the Government filed a Response that also objected to some of Judge Foley's findings (ECF No. 149). Pursuant to Local Rule IB 3-2(b), I have conducted a de novo review of the motion to suppress and related papers. I agree with Judge Foley's recommendation to deny the motion to suppress, but on different grounds. Therefore, I will modify Judge Foley's Findings and Recommendation and deny the motion to suppress.

         I. FACTUAL BACKGROUND

         The parties are familiar with the facts and procedural posture of this case (and those are detailed in the briefs), so I will not repeat them here except where necessary for context.

         On May 26, 2016, the National Center for Missing and Exploited Children (NCMEC) sent Cybertip #10001179 to the Las Vegas Metropolitan Police Department, reporting that Tumblr had reported the upload of apparent child pornography. ECF No. 47-1. The Cybertip reported the user as:

Email Address: mcwarson@gmail.com Screen/User Name: mew Profile URL: mcw.tumblr.com IP Address: 50.118.198.284 (Other)

         The Cybertip included additional information about IP addresses that appeared related to that user name, including 24.253.48.163.

         Detective Scott Miller conducted an investigation of the Cybertip, including serving a search warrant on Tumblr. ECF No. 47-2. Based on his investigation, Det. Miller applied for a search warrant for the house located at 10432 Burkehaven; he submitted an affidavit in support of that search warrant request summarizing his investigation. ECF No. 47-4. Justice of the Peace Suzan Baucum issued the search warrant. The defendants challenge the contents of Det. Miller's warrant affidavit and seek to suppress items seized as a result of the warrant.

         Magistrate Judge Foley conducted a Franks hearing and recommended that I deny the motion to suppress. ECF No. 146. The defendants objected to that recommendation and the Government's response includes objections to some of Judge Foley's findings.

         II. LEGAL STANDARDS

         Under Local Rule IB 3-2(b), I "must conduct a de novo review of those portions of the specified findings or recommendations to which objections have been made. [I] may accept, reject or modify, in whole or in part, the magistrate judge's findings or recommendations." See also 28 U.S.C. § 636(b)(1)(c) (same).

         The Government objects (ECF No. 149 at 10-13) to Judge Foley's order (ECF No. 59) granting a Franks hearing.[1]The Government contends, among other things, that the defendants did not meet the standard under Franks to warrant a hearing. I agree, and I would not have conducted a hearing.

         A defendant challenging a search warrant affidavit is entitled to an evidentiary hearing "where the defendant makes 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 [that] the allegedly false statement is necessary to the finding of probable cause.. .." Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The defendant must show "that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause." United States v. Stanert, 762 F.2d 775, 782 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985) (citing Franks, 438 U.S. at 171-72). "The effect of the misrepresentations and omissions on the existence of probable cause is considered cumulatively." Id. (citation omitted). I "must determine, therefore, whether the affidavit, once corrected and supplemented, would provide a magistrate with a substantial basis for concluding that probable cause existed." Id.

         III. ...


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