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United States v. Wilson

United States District Court, D. Montana, Butte Division

December 8, 2017



          Dana L. Christensen, Chief District Judge

         Before the Court is Defendant Brandon Robert Wilson's (“Wilson”) Opposed Motion to Suppress (Doc. 18). Wilson seeks a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to determine whether evidence gained through the execution of a search warrant should be suppressed. Contingent upon a favorable resolution to the Franks Hearing, Wilson also seeks suppression of evidence gained subsequent to the warranted search as fruit of the poisonous tree. (Doc. 18 at 2.) Also before the Court are Wilson's Motion to Withdraw Certain Exhibits and to File Same Under Seal (Doc. 20), Motion to Re-File Under Seal (Doc. 21), and Unopposed Motion to Extend Plea Deadline and to Continue Trial for 30 Days (Doc. 27).

         Wilson has been charged with felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). The indictment alleges that on or about April 11, 2017, Wilson knowingly and unlawfully possessed 42 different firearms. (Doc. 1 at 1-4.) April 11, 2017, was the date the search warrant at issue was executed. (Docs. 19 at 8; 23 at 5.) Wilson claims that he is entitled to a Franks Hearing because he has made a “substantial preliminary showing” that false statements and omissions were knowingly and intentionally included in the warrant application by United States Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Special Agent Riley J. Cook (“Agent Cook”) and that Magistrate Judge Jeremiah C. Lynch would not have found probable cause to support the warrant had the omitted facts been included and the false statements excluded. (Doc. 19 at 20.) If Wilson were granted a Franks Hearing and succeeded in establishing, by a preponderance of the evidence, that Agent Cook made deliberate false statements and omissions in his warrant application which are material to a finding of probable cause, then the search warrant would be voided and the fruits of the search excluded from evidence. Franks, 438 U.S. at 156.

         The Government counters that Wilson has failed to make the requisite showings which would entitle him to a Franks Hearing because the warrant application did not include falsities and was not incomplete. Further, the Government claims that the allegedly false statements and material omissions were not necessary for Judge Lynch to find probable cause to support issuing the warrant. (Doc. 23 at 2.)

         For the reasons herein explained, the Court finds that Wilson has not made the requisite showing for a Franks Hearing and, therefore, his Motion to Suppress will be denied. However, due to the sensitive nature of the exhibits specified in his Motion to Withdraw and Motion to Re-File, the Court will grant these two Motions. Additionally, the Court will extend the plea deadline and continue trial in this matter.


         The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Additionally, the Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. Whether or not a search was reasonable is a determination that must be made by considering the facts as they existed at the time the invasion occurred. United States v. Jacobsen, 466 U.S. 109, 115 (1984). When “passing on the validity of a warrant, ” the reviewing court is limited to considering only the information presented to the magistrate judge. Aguilar v. Texas, 378 U.S. 108, 109 n. 1 (1964).

         In Franks v. Delaware, the Supreme Court held that criminal defendants have a limited right under the Fourth and Fourteenth Amendments to challenge the truthfulness of factual statements made in an affidavit supporting a search warrant. Herring v. United States, 555 U.S. 135, 145 (2009). Under Franks, a criminal defendant is entitled to a hearing when he “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 the allegedly false statement is “necessary to the finding of probable cause.” 438 U.S. at 155-56. The Ninth Circuit has further clarified that a hearing is not warranted unless:

(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause.

United States v. DiCesare, 765 F.2d 890, 894-95 (9th Cir. 1985) (citing United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983)).

         The limited right of criminal defendants to challenge false statements in a warrant affidavit under Franks also allows criminal defendants to “challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead.” United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985). To warrant a Franks Hearing for an alleged material omission, the defendant must first make a “substantial preliminary showing that the affidavit contained a misleading omission and that the omission resulted from a deliberate or reckless disregard for the truth” and, second, must demonstrate “that had there been no omission, the affidavit would have been insufficient to establish probable cause.” United States v. Kyllo, 37 F.3d 526, 529 (9th Cir. 1994). Omissions are material only when the omitted facts “cast doubt on the existence of probable cause.” United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992).

         At bottom, Wilson must show that the affidavit, purged of the alleged falsities and supplemented by the alleged omissions, would be insufficient to support a finding of probable cause. See Stanert, 762 F.2d at 782. Probable cause exists if the affidavit provides a substantial basis for believing that criminal activity might have been occurring at the place to be searched. See United States v. Martinez-Garcia, 397 F.3d 1205, 1216 (9th Cir. 2005). “Probable cause requires a fair probability, but not a certainty, that a search would yield evidence of crime.” Id. at 1217 (citing Illinois v. Gates, 462 U.S. 213, 231-32 (1983)).

         I. Alleged False Statements

         Wilson alleges that Agent Cook included false statements in his affidavit in support of his warrant by misrepresenting the certainty of two informant's as to Wilson's exact address. On March 7, 2017, Diana Jenks (“Jenks”), Wilson's mother, reported to Gallatin County's Sheriff's Office Deputy Sandy Schroeder (“Deputy Schroeder”) that she had seen firearms at Wilson's home when she visited him in December of 2016. (Docs. 19 at 13; 23 at 2, 4.) On March 21, 2017, Candice Wilson (“Candice”), Wilson's estranged wife, reported to Agent Cook and ATF Special Agent Philip Swain (“Agent Swain”) that Wilson lived on Jordan Spur Road. (Docs. 19 at 14; 23 at 8.) Particularly, Wilson claims that the following statements contained in Agent Cook's affidavit are false:

1. “Jenks further informed Deputy Schroeder that she had visited WILSON in December, 2016 at WILSON's residence located at 4585 Jordan Spur Road, Bozeman, ...

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