United States District Court, D. Nevada
ORDER ACCEPTING AND MODIFYING MAGISTRATE JUDGE'S
FINDINGS AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS
(ECF NOS. 41, 146)
P. GORDON, UNITED STATES DISTRICT JUDGE.
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
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.
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: firstname.lastname@example.org Screen/User Name:
mew Profile URL: mcw.tumblr.com IP Address:
Cybertip included additional information about IP addresses
that appeared related to that user name, including
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.
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.
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).
Government objects (ECF No. 149 at 10-13) to Judge
Foley's order (ECF No. 59) granting a Franks
hearing.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.
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."