JOSEPH F. BATAILLON, United States District Judge.
I. INTRODUCTION
The matter before the Court is the defendants' appeal (Filing 79) from the magistrate judge's order of September 7, 1999 (Filing 73), denying the defendants' request for a Franks hearing (Filings 69, 70, and 72). The defendants are individually charged by indictment with one count of conspiracy to distribute methamphetamine and cocaine under 21 U.S.C. § 846 and one count of possession with intent to distribute methamphetamine under 21 U.S.C. § 841(a)(1).
The Court has reviewed the record, the indictments, the transcripts (Filings 21, 28, 29, and 85) from the hearings on the motions to suppress (Filings 20, 69, 71, and 72), the defendants' motions and supporting briefs, and the government's response. Accordingly, the Court will affirm the magistrate judge's order denying the defendants a Franks hearing.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The Court may also receive further evidence or remand the matter to the magistrate with instructions.
III. STATEMENT OF FACTS
On October 16, 1998, an Express Mail package bearing label Number EI506202438US, having a return address of Anna Hernandez, 426 N. Fries Ave., Willm., CA 90745 (or 90748, the last number is illegible), addressed to Maria Garcia, 508 S. 50th St., Omaha, N.E. 68106, was observed in the mail stream at the Air Mail Facility in Omaha, Nebraska. Filing 16. Postal Inspector Clayton Reeves pulled the package from the mail stream because it fit a profile of packages that had previously been found to contain narcotics. Id.
Inspector Reeves and the Postal Inspection Service have developed a criteria of characteristics which is based on the collective experience of the Service in detecting parcels containing narcotics contraband. Filing 76. Inspector Reeves had personal knowledge of the following characteristics of the package which basically constitute what is referred to as the drug profile:
the Express Mail service is used primarily by businesses that send paper and do not handwrite their labels; the vast majority of individuals do not use the service due to its high cost; like businesses drug traffickers benefit from the speed and reliability of the Express Mail system, as well as the free tracking service; discrepancy in Zip Codes has proven to be used by drug traffickers as a method of concealing the identity of the sender; the package weighed more than the majority of the parcel sent by Express Mail; drug traffickers often use tape to seal boxes in order to conceal the odor of the narcotic.
Id. The package pulled by Inspector Reeves from the mail stream at the Air Mail Facility bore a handwritten label, was sent from one individual to another, originated from a drug source state, and the return address was invalid.
Id. The Zip Code 90745 applies to the city of Carson, California.
Id. Assuming the sender intended to place Zip Code 90748 on the parcel, that number is only valid for post office boxes in Wilmington, California.
Id. The package was mailed at a postal station in the 90717 Zip Code.
Id. The parcel itself appeared as a 12" x 12" x 12" cardboard box sealed with brown plastic tape, weighed 12 lbs., 7 oz., and was mailed at a cost of $33.10.
Id. These factors, as related to the test used by the Postal Inspection Service, prompted Inspector Reeves to pull the package from the mail stream.
Upon the detention of the parcel, Inspector Reeves determined that the return address of 426 Fries Ave. appearing on the package's label does not exist. Id. The package was then presented to a certified drug detection canine at the Air Mail Facility who alerted in a positive manner to the odor of a controlled substance. Id. An application and affidavit for search warrant was then prepared and presented to United States Magistrate Judge Thomas Thalken. Id. Magistrate Judge Thalken signed the warrant and it was thereafter executed. Id.
Within the package, the inspectors found a sealed can of jalapeno peppers. Id. Within the can, they found three packets containing approximately three pounds of methamphetamine. Id. The inspectors then repackaged the box and its contents so the parcel would not appear to have been tampered with in order to execute a controlled delivery to the listed address. Id. They removed the majority of the narcotics, leaving only 121.5 grams in the package. Id.
On October 16, 1998, Officer Marc Thibault of the Omaha Police Department prepared a search warrant for the residence at 508 S. 50th Street in anticipation of a successful delivery of the controlled substance. Id. The search warrant stated that its execution was to take place during the daytime hours following the successful delivery of the Express Mail package. Id. A subsequent search of the premises revealed a loaded 9 mm Glock handgun on top of the bed in the upstairs bedroom. Id. Venue items linking defendant Yager and defendant Aldaco were found in the same bedroom. Id.
IV. DISCUSSION
The defendants appeal the magistrate judge's denial (Filing 73) of their request for a Franks hearing. The defendants contend that the affidavit supporting the October 16, 1998, search warrant of the Express Mail package at the Omaha Air Facility was misleading because it contained intentional and reckless factual omissions about the training, duty history and package presentation deficiencies of the dog used to detect the controlled substances in the package. Specifically, the defendants note that Officer Thibault, the dog's handler, did not inform Inspector Reeves of the dog's alleged unreliability, which, the defendants believe, undercuts the validity of Reeves' affidavit submitted in support of the search warrants. The defendants assert that the police cannot insulate one officer's deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity. Furthermore, the defendants contend that evidence discovered as a result of the second search warrant conducted at the defendants' residence is inadmissibly tainted by the underlying deficiency of the first search warrant.
A defendant is entitled to a Franks hearing when he or she "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." Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A defendant can also ask for a Franks hearing when the affiant omits facts with an intent to mislead or in reckless disregard of whether the omission is misleading. United States v. Falls, 34 F.3d 674, 681 (8th Cir. 1994). This "substantial preliminary showing" needed to obtain a Franks hearing is "not lightly met." United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir. 1995). Mere allegations of negligence or innocent mistake are insufficient to make this substantial preliminary showing, United States v. Najarian, 915 F. Supp. 1441, 1455 (D.Minn. 1995), but "recklessness may be inferred from the fact of omission of information from an affidavit . . . when the material omitted would have been "clearly critical' to finding of probable cause." United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) (citations omitted). If the affidavit is sufficient to establish probable cause with the false material removed or with the omitted material included, no evidentiary hearing is required. United States v. Crook, 936 F.2d 1012, 1014 (8th Cir. 1991). Probable cause exists when the application for a search warrant "presents sufficient facts to justify a prudent person in the belief that there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Riedesel, 987 F.2d 1383, 1390 (8th Cir. 1993).
To satisfy their burden of making the "substantial preliminary showing" needed to receive a Franks hearing, the defendants must show that 1) the affiant, Inspector Reeves, deliberately or intentionally omitted facts that made the affidavit misleading, and 2) the affidavit does not support a determination of probable cause when the omitted facts are included. United States v. Lucht, 18 F.3d 541, 546 (8th Cir. 1994). The Court finds that the defendants have not made the "substantial preliminary showing" needed to receive a Franks hearing. The evidence proffered by the defendants does not amount to a substantial showing that the affidavits of Inspector Reeves and Officer Thibault "intentionally and recklessly" omitted information regarding the training of the dog. The Court finds that the defendants' allegations regarding the dog's unreliability and lack of corrective training are unfounded. Officer Thibault testified that the dog had a positive alert percentage of 92.25% (based on 155 alerts with 143 seizures); he also testified about his practice of retraining or "proofing" the dog upon improper alerts (Filing 29). Furthermore, even if the information about the dog's alleged unreliability and lack of proper training had been added to the affidavit, the judge would still likely have found probable cause existed to issue the second warrant for the defendants' house. The amount and nature of the evidence found in the package addressed to the defendants' house were sufficient to allow the judge to make a "practical, common-sense decision" based on the totality of the circumstances that there was a "fair probability that contraband or evidence of a crime" would be found in the defendants' house. Illinois v. Gates, 462 U.S. 213, 238 (1983). Accordingly, the defendants' appeal of the magistrate judge's order denying a Franks hearing is dismissed.
IT IS THEREFORE ORDERED that:
1) The defendants' appeal (Filing 79) of the magistrate judge's order (Filing 73) denying the defendants' request for a Franks hearing (Filings 69, 70, and 72) is dismissed.