United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill U.S. District Court Judge.
evening of December 8, 2018, a magistrate judge signed a
warrant authorizing police to search Defendant Steven
Thompson's home. They found a little under an ounce of
meth, a scale, a shotgun shell, and a few gun magazines.
Thompson moves to suppress this evidence. (Dkt. 150). He says
the affidavit supporting the search warrant did not establish
probable cause to conclude he was a drug dealer or that drugs
would be found in his home. Alternatively, Thompson says he
is entitled to a Franks hearing because the ATF
agent who swore out the affidavit intentionally or recklessly
misled the magistrate by omitting facts and by including
other false and misleading facts. For the reasons explained
below, the Court disagrees and will deny the motion.
Facial Validity of the Warrant
Warrant Clause of the Fourth Amendment generally requires
police to obtain a warrant from a neutral magistrate before
searching private property. See U.S. Const. amend.
IV. The amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, . . . .” Id. Probable cause is
established when there is “a fair probability that
contraband or evidence is located in a particular place.
Whether there is a fair probability depends upon the totality
of the circumstances, including reasonable inferences, and is
a commonsense, practical question. Neither certainty nor a
preponderance of the evidence is required.” United
States v. Kelley, 482 F.3d 1047, 1050-51 (9th Cir. 2007)
(internal quotation marks and citations omitted). In other
words, probable cause “is not a high bar: It requires
only the kind of ‘fair probability' on which
‘reasonable and prudent [people, ] not legal
technicians, act.'” Kaley v. United
States, 571 U.S. 320, 337 (2014) (internal quotation
marks and citation omitted).
determining whether a search warrant was based upon probable
cause, the district court is “limited to the
information and circumstances contained within the four
corners of the underlying affidavit.” United States
v. Stanert, 762 F.2d 775, 778 (9th
Cir. 1985), amended by 769 F.2d 1410 (9th
Cir. 1985). Further, review of a magistrate judge's
determination that probable cause existed is deferential;
“the duty of a reviewing court is simply to ensure that
the magistrate had a ‘substantial basis for ...
conclud[ing]' that probable cause existed.”
Illinois v. Gates, 462 U.S. 238-39 (1983). As the
Ninth Circuit has explained, “[n]ormally, we do not
‘flyspeck' the affidavit supporting a search
warrant through de novo review; rather, the magistrate
judge's determination should be paid great
deference.” Kelley, 482 F.3d at 1050. Also,
“[i]n borderline cases, preference will be accorded to
warrants and to the decision of the magistrate issuing
it.” United States v. Martinez, 588 F.2d 1227,
1234 (9th Cir. 1987).
Agent Janeece Gonzales swore out the probable-cause
affidavit, which focuses primarily on David Roberts and his
girlfriend Echo Dalos. In April 2018, an
informant told law enforcement that Roberts
“and others” were distributing large amounts of
methamphetamine and heroin. Gonzales Aff.
¶¶ 11-12. The informant said she and her boyfriend
had accompanied Roberts to Las Vegas and Los Angeles on drug
runs. Id. ¶ 12. Investigators also looked at
location data for Roberts' cell phone, which indicated
Roberts had traveled to Nevada eleven times between April and
December 2018, and that on five of those trips his cell phone
went on to southern California. Id. ¶ 24.
the summer of 2018, police searched trash from Roberts'
and Dalos' homes. They found methamphetamine and drug
paraphernalia in Roberts' trash and marijuana in
Dalos'. See Id. ¶¶ 15-17. Later that
summer, another informant told law enforcement he had
obtained “significant quantities” of meth from
Roberts within the last year or so and that Dalos sold meth
for Roberts. Id. ¶ 13. Additionally, Agent
Gonzales reported that investigators had made controlled buys
from both Roberts and Dalos at their homes. Id.
September 2018, law enforcement officers used cell phone
location data to track down Roberts on a “return
trip.” Id. ¶ 25. They saw Roberts stop at
a casino in Jackpot, Nevada. A person driving a Mitsubishi
Galant stopped with Roberts. At the time, investigators
believed the second person was Kyle Pherigo. Pherigo and
Roberts went into the casino together and later left
together, travelling in tandem northbound toward Twin Falls,
Idaho. Investigators lost sight of the vehicles at some point
but later saw the Galant parked at 280 Harrison Street, which
is Thompson's home. Id.
points out that the warrant affidavit does not contain the
sort of detailed information about him that it does about
Roberts and Dalos. There is no mention of any informants
implicating Thompson in drug-trafficking activities; there is
no mention of a positive hit on a trash search at his
residence; and there is no mention of any controlled buys
involving Thompson or his residence.
it appears that agents did not begin focusing on Thompson
until mid-November 2018, when a wire went up and
investigators began listening to Roberts' telephone calls
and reading his texts. The affidavit states:
• “Roberts frequently communicates with Steven
Thompson who uses telephone number 208-297-9870.
Investigators initially believed the user of this telephone
was Kyle Pherigo who lives with Thompson at 280 Harrison
Street but investigators later confirmed the user of the
telephone as Thompson through visual surveillance while he
was speaking to Roberts.” Id. ¶ 31.
• “Since investigators began to intercept the
communications, Thompson frequently communicates to Roberts
that he has ...