United States District Court, D. Montana, Great Falls Division
Morris United States District Court Judge
Brandon Cordell Bennett moves this Court to suppress evidence
obtained from his cell phone pursuant to a search warrant
issued by a Montana state district court judge. (Doc. 141.)
Bennett also filed a Motion for a Bill of Particulars (Doc.
145) and a Motion for Pretrial Judgement of Acquittal (Doc.
168). The Court conducted a hearing on the instant motions on
April 8, 2019. (Doc. 174.)
Great Falls Police Department (“GFPD”) arrested
Bennett on October 13, 2015, in response to an allegation
that Bennett had sexually abused his step daughter, Jane Doe.
(Doc. 143-2.) Bennett was arrested at his place of
employment-O'Reilly Auto Parts. (Doc. 142-3 at 2.)
Officer Jeremy Parks was instructed to check the O'Reilly
Auto Parts' parking lot for Bennett's vehicle to see
whether Bennett's cell phone was located inside the
vehicle. Id. Officer Parks observed a cell phone
located on the passenger seat. Id. Officer Parks
requested that S&C Auto, Inc. tow Bennett's vehicle
to the GFPD. Id. Officer Parks sealed Bennett's
vehicle with evidence tape. Id.
assigned Detective Adam Price to follow up on the initial
investigation into Doe's allegation against Bennett on
the date of Bennett's arrest. (Doc. 143-5 at 1.) Cascade
County Deputy County Attorney Josh Racki informed Detective
Price “that there was not enough probable cause to
seize and/or search [Bennett's] phone.” (Doc. 143-5
at 3.) GFPD eventually arranged to have Bennett's vehicle
towed back to his residence that he shared with D.D.,
Doe's mother. Id.
State of Montana charged Bennett by Information in the Eighth
Judicial District, Cascade County, with Incest, a felony, in
violation of Montana Code Annotated § 45-5-507, on
October 20, 2015. (Docs. 143-2, 142-6 at 1.) The case
proceeded to trial. A jury found Bennett not guilty of this
offense on August 10, 2016. (Doc. 143-8 at 8-9.)
Castle, Doe's counselor, contacted Detective Price on
August 23, 2016. (Doc. 143-1 at 4.) Doe had been seeing
Castle since November of 2015, following her earlier
disclosure of sexual abuse by Bennett. (Doc. 173-1 at 24.)
Doe had confided in Castle that Bennett “had taken
photos of [Doe] naked with his cell phone while making her
pose in certain positions.” Id. Castle
informed Detective Price that D.D., currently was at
Castle's office. Id. Castle reported that D.D.
was in possession of Bennett's cell phone. Id.
D.D. provided Detective Price with Bennett's cell phone
at Castle's office. Id.
Scott conducted a forensic interview with Doe on August 24,
2016. (Docs. 143-1 at 4, 144, Exhibit Q.) Doe disclosed, in
relevant part, that Bennett had taken photos of Doe
“down there” and of her upper body. Id.
Doe explained that Bennett had taken photos of Doe while he
was touching her. Id. Bennett allegedly made Doe
spread her legs and make them go up while she was laying on
her back. Id. Doe repeated that Bennett had
used his cell phone to take the photos of her. Id.
Price applied for a warrant to search Bennett's cell
phone on August 31, 2016. (Doc. 142-2.) Detective Price
attested to the following in his affidavit in support of the
On August 23, 2016, GFPD Detective Price received a call from
child counselor Robin Castle. Castle had been seeing 9 year
old Jane Doe in relation to sexual abuse by her step-father,
Brandon Bennett. Castle informed Price that Doe had disclosed
that Bennett had taken pictures of Doe naked with his cell
phone while making her pose in certain positions. Castle
informed Doe's mother and Doe's mother brought the
cell phone to Castle's office.
Detective Price met with Castle and Doe's mother at
Castle's office. Doe's mother informed Detective
Price that the phone belonged to Bennett and that she tried
to get into the phone herself to look at it but that she did
not know the passcode. Doe's mother provided the phone to
Detective Price and a forensic interview was scheduled for
On August 24, 2016, Detective Noah Scott performed a forensic
interview with Doe. Doe disclosed that Bennett “hurt
her.” Bennett took pictures of Doe “down
there” referring to her vaginal area. Bennett also took
pictures of her chest. All of these pictures were taken with
Bennett's phone. Doe also reported that Bennett touched
her in the vaginal and chest area. She stated that he touched
under her clothes with his “little willy thingy”
and took pictures with his phone while touching her. Doe
reported that this all occurred at their house in her
Doe disclosed that when Bennett took the pictures he made Doe
spread her legs and lift her legs up while she laid on her
back. Doe felt scared when this happened and reported that
only she and Bennett were in the room while he did this and
while he took the pictures.
After this interview, Detective Price spoke with Doe's
mother. Doe's mother reported that this was Bennett's
only phone and that he had used it for at least a year prior
to him being arrested in October 2015. Doe's mother
stated that after he was arrested she tried to get into the
phone as she was suspected that Bennett looked at child
pornography, however she could not access the phone as it was
protected by a passcode. (sic).
(Doc. 142-2 at 1-2.) Montana State District Court Judge Greg
Pinski issued the search warrant that same day. Id.
Price extracted data from Bennett's cell phone on
September 1, 2016. (Doc. 142 at 12.) Detective Price observed
that the extracted data contained mostly images of child
pornography. Id. Law enforcement officers obtained a
series of warrants between September 1, 2016 and March of
2017, to search Bennett's cell phone. Id. Law
enforcement recovered a total of 1, 043 images of child
pornography from Bennett's cell phone. Id.
grand jury indicted Bennett on October 5, 2017, on two
counts: Sexual Exploitation of a Child, in violation of 18
U.S.C. § 2251(a) (Count I), and Receipt of Child
Pornography, in violation of 18 U.S.C. § 2252(a)(2)
(Count II). (Doc. 1.) The Government filed a Superseding
Indictment on April 4, 2019. (Doc. 164.) The Superseding
Indictment alleges the same two counts that had been alleged
in the Indictment with one modification-the date of conduct
was changed in Count I. Id. at 2.
Court will address first whether Bennett's claim entitles
him to a Franks hearing. Second, the Court will
analyze whether Bennett's Franks hearing
warrants suppression of evidence from Bennett's cell
phone obtained subsequent to a search warrant. Third, the
Court will determine whether Bennett's claim warrants
dismissal of Count I of the Superseding Indictment.
I. Franks Hearing and Motion to
Suppress Bennett asserts that the omission of facts relating
to Doe's credibility, Doe's mother's credibility,
a parenting plan that D.D. had filed in state court, and the
prior history of Bennett's state case undermines Judge
Pinski's determination of probable cause to search
Bennett's phone. (Doc. 142 at 15-17.) Bennett's
argument requires the Court to address first whether these
omissions entitle Bennett to a hearing pursuant to Franks
v. Delaware, 438 U.S. 154, 171 (1978).
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 if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the
defendant's request.” Franks, 438 U.S. at
155-56. The Fourth Amendment likewise permits a defendant to
challenge a warrant pursuant to Franks when a valid
affidavit “contains deliberate or reckless omissions of
facts that tend to mislead.” United States v.
Stanert, 762 F.2d 775, 781 (9th Cir. 1985).
defendant proves entitled to a Franks hearing if he
establishes the following factors:
(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
United States v. DiCesare, 765 F.2d 890, 894-95 (9th
Cir. 1985) (citation omitted); see also United States v.
Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000) (“A
defendant is entitled to a Franks hearing only if he
makes a two-fold showing: intentional or reckless inclusion
or omission, and materiality.”). Essentially, the
defendant must make “a substantial preliminary showing
that the affidavit contain[ed] intentionally or recklessly
false statements, and . . . [that] the affidavit purged of
its falsities would not be sufficient to support a finding of
probable cause.” United States v. Meling, 47
F.3d 1546, 1553 (9th Cir. 1995) (internal quotations and
Court determined at Bennett's motion hearing that Bennett
had made a substantial showing to establish the five
DiCesare factors. First, Bennett has
“alleg[ed] specifically” that Detective
Price's affidavit as a whole remains false due to
Detective Price's failure to include nine omitted facts.
DiCesare, 765 F.2d at 894-95. Second, Bennett
contends that Detective Price deliberately omitted those
facts from his affidavit. Third, though Bennett fails to
accompany his allegations with “a detailed offer of
proof, ” Bennett does provide a combination of direct
and circumstantial evidence to support his assertions.
DiCesare, 765 F.2d at 894-95. Fourth, Bennett's
assertions challenge the veracity of Detective Price-the
detective who has been investigating Bennett's case since
October 13, 2015. Finally, the alleged omissions from
Detective Price's affidavit prove necessary to the
finding of probable cause to search Bennett's cell phone.
These facts entitle Bennett to a Franks hearing.
defendant earns a Franks hearing, his burden of
proof changes. A defendant at a Franks hearing must
prove the following elements by a preponderance of the
evidence: “that there was (1) a knowing and intentional
falsehood or a reckless disregard for the truth; and (2) that
the challenged statement was essential to the ...