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United States v. Bennett

United States District Court, D. Montana, Great Falls Division

April 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON CORDELL BENNETT, Defendant.

          AMENDED ORDER

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE

         Defendant 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.)

         BACKGROUND

         The 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.

         GFPD 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.

         The 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.)

         Robin 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.

         Detective 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.

         Detective 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 search warrant:

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 Doe.
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 mom's room.
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. at 4.

         Detective 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.

         The 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.

         DISCUSSION

         The 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).

         “[W]here 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).

         A 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 probable cause.

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 citation omitted).

         The 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 ...


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