United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION (DOCKET NO.
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
matter was referred to the undersigned Magistrate Judge on
Defendant Angelo Taylor's motion to suppress evidence.
Docket No. 38. The Court has considered Defendant's
motion, Defendant's separately filed exhibit, the United
States' response and exhibits, Defendant's reply,
Defendant's supplemental brief, and the United
States' supplemental brief. Docket Nos. 38, 39, 43, 45,
30, 2018, Nevada State Judge Eric Goodman issued a telephonic
search warrant permitting police to search Defendant's
residence for firearms and related evidence based on facts
provided telephonically by Las Vegas Metropolitan Police
Department (“LVMPD”) Officer Aaron Jenkins in an
oral affidavit. Docket No. 38 at 2-3. Officer Jenkins
attested that he was investigating Defendant for the crime of
felon in possession of a firearm and asserted that the
following facts established probable cause for the issuance
of a search warrant: Dorothea Hill, Defendant's
mother-in-law, reported to police that, on June 30, 2018,
Defendant threatened to “shoot it out” with
police if they were called; Defendant said he would kill his
family and himself via “suicide by cop;” and
Defendant was sitting inside his residence monitoring his
surveillance cameras. Docket No. 38-1 at 5. Further,
Defendant's wife, Deriyonne Taylor, reported to police
that Defendant pointed a gun at her head in April 2018;
Defendant's son, K.E. [sic], told police that he
saw Defendant with a black Taurus 9mm gun “a week ago,
” that Defendant keeps the gun in a dresser in his
closet, and that Defendant carries the gun in his waistband
when he leaves the house; Defendant's daughter, D.S.,
reported to police that Defendant had pointed a gun at her
mother two months earlier and threatened to kill her if she
left him, and that she saw the handle of a gun in
Defendant's waistband on June 30, 2018. Id. at
5-6. Further, the affidavit states that Defendant was
convicted of two felonies in 2009 in Kansas City, Missouri.
Id. at 6.
hearing Officer Jenkins' recitation of the facts, Judge
Goodman found that probable cause existed and issued the
search warrant with a nighttime clause. Id. During
the execution of the search warrant, law enforcement officers
recovered a Taurus 9mm handgun and 9mm ammunition from
Defendant's residence. Docket No. 38 at 3.
October 10, 2018, a federal grand jury sitting in Las Vegas,
Nevada issued an indictment charging Defendant with one count
of Felon in Possession of a Firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). Docket No. 1. On
March 29, 2019, Defendant filed a motion to dismiss the
indictment because the Missouri offenses could not serve as
predicate offenses. See Docket No. 26.
National Crime Information Center (“NCIC”) report
on which Officer Jenkins and the government relied lists two
felonies in Kansas City, Missouri, each with a disposition of
“GUILTY - SIS.” Docket 38-4 at 5-6. Under
Missouri law, “SIS” is a designation for
“suspended imposition of sentence, ” and a
criminal conviction is not recorded if an offender on an SIS
successfully completes probation. Docket No. 38 at 8.
Defendant successfully completed probation for the felonies
listed on his rap sheet. Id. Nevada does not have a
comparable disposition for cases. Id. at 7. Officer
Jenkins' affidavit did not mention “SIS.”
See Docket 38-1.
April 10, 2019, the federal grand jury issued a superseding
indictment charging Defendant with Prohibited Person in
Possession of a Firearm, in violation of 18 U.S.C.
§§ 922(g)(9) and 924(a)(2). Docket No. 27.
Defendant submits that the superseding indictment was sought
in response to his argument that he is not a felon under the
applicable statute. Docket No. 38 at 3. Defendant, citing
Franks v. Delaware, now asks for a Franks
hearing and the suppression of the evidence recovered as a
result of the execution of the search warrant at his
residence. Id. at 1, 11.
Franks v. Delaware, 438 U.S. 154 (1978), the Supreme
Court addressed at length whether a false statement by a
government affiant invalidates a search warrant. United
States v. Hammett, 236 F.3d 1054, 1058 (9th Cir. 2001)
(citation omitted). The Court held that, under certain
circumstances, a defendant is entitled to an evidentiary
hearing to afford the defendant an opportunity to attack the
veracity of a facially-valid affidavit used to support a
search warrant. A defendant can challenge a facially valid
affidavit by making a substantial preliminary showing that
“(1) the affidavit contains intentionally or recklessly
false statements or misleading omissions, and (2) the
affidavit cannot support a finding of probable cause without
the allegedly false information.” United States v.
Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000) (citing
United States v. Stanert, 762 F.2d 775, 780-81 (9th
a criminal defendant is entitled to go beneath the search
warrant to obtain additional information concerning the
police investigation and an informant, he or she is required
to make a substantial threshold showing. A defendant's
preliminary showing cannot be “merely
conclusory.” Reeves, 210 F.3d at 1044.
“There must be allegations of deliberate falsehood or
reckless disregard for the truth, and these allegations must
be accompanied by an offer of proof.” Hammett,
236 F.3d at 1058 (quoting Franks, 438 U.S. at 171).
“To justify a hearing, a defendant must make specific
allegations, allege a deliberate falsehood or reckless
disregard for the truth, and accompany such a claim with a
detailed offer of proof.” United States v.
Craighead, 539 F.3d 1073, 1080 (9th Cir. 2008) (citation
omitted). The movant bears the burden of proof and must make
a substantial showing to support both elements. See
United States v. Garcia-Cruz, 978 F.2d 537, 540 (9th
or reckless omissions may provide grounds for a
Franks hearing. United States v. Jawara,
474 F.3d 565 (9th Cir. 2007)); see also United States v.
Stanert, 762 F.2d 775, 781 (9th Cir. 1985) (“By
reporting less than the total story, an affiant can
manipulate the inferences a magistrate [judge] will draw. To
allow a magistrate [judge] to be misled in such a manner
could denude the probable cause requirement of all real
meaning”). Although “[c]lear proof of deliberate
or reckless omission is not required, ” a
“[d]efendant ‘must offer direct evidence of the
affiant's state of mind or inferential evidence that the
affiant had obvious reason for omitting facts in order to
prove a deliberate falsehood or reckless disregard.”
United States v. Souffront, 338 F.3d 809, 822-23
(7th Cir. 2003). A defendant must also show that the
“affidavit, once corrected and supplemented, ”
would not “provide ... a substantial basis for
concluding that probable cause existed.”
Stanert, 762 F.2d at 782. “[T]he omission rule
does not require an affiant to provide general information
about every possible theory, no matter how unlikely, that
would controvert the affiant's good-faith belief that
probable cause existed for the search.”
Craighead 539 F.3d at 1081.
submits that he is entitled to a Franks hearing
because the affiant's testimony, cured of recklessly
false statements and misleading omissions, cannot support a
finding of probable cause that Defendant was a felon in
possession of a firearm. Docket No. 38 at 10-11.
Specifically, Defendant submits that the affiant made two
false statements: (1) Defendant had been convicted of two
felonies; and (2) Defendant's child saw Defendant with a
gun on June 30, 2018. Id. at 9. Further, Defendant
submits that the affiant's failure to include the
“SIS” designation in his testimony constitutes a
misleading omission. Id. at 8. Moreover, Defendant
submits that, if Judge Goodman had known that the imposition
of sentencing for Defendant's Missouri offenses had been
suspended and that the Defendant's child did not report
seeing Defendant with a firearm on June 30, 2018, then he
would not have found probable cause to issue the search
warrant for evidence of the crime of felon in possession of a