United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge.
October 11, 2018, Defendant Angel Romeu filed a “Motion
to Suppress Wire and Electronic Communication Obtained in
Violation of Title III and the United States
Constitution” (Doc. 37). Romeu asserts, in his motion
and supporting documents, that the Order authorizing the
wiretap of the intercepted communications was insufficient on
its face, that the communications at issue were unlawfully
intercepted pursuant to an Affidavit riddled with
misstatements and omissions, and that the Government failed
to comply with the proper sealing procedures of the
intercepted recordings. (Id.). Romeu also requests a
Franks Hearing to correct the Affidavit and
ultimately moves to suppress the intercepted communications
and evidence derived pursuant to the Order. (Id.).
Romeu filed an accompanying brief (Doc. 39), to which the
Government has filed a response (Doc. 50), and Defendant has
filed a reply brief (Doc. 51). Thus, the motion has been
fully briefed and is ripe for disposition. For the reasons
herein, the Court will deny Defendant Romeu's Motion.
Factual Background and Procedural History
2016, Pennsylvania State Police were investigating a
large-scale methamphetamine distribution organization that
operated mainly within Schuylkill County, Pennsylvania. (Doc.
50, at 5). Pursuant to that investigation, on March 24, 2016,
the District Attorney of Schuylkill County applied to the
Superior Court of Pennsylvania for an Order authorizing the
interception of wire and electronic communications of
Defendant Angel Romeu. (Docs. 38-1; 38-3). The District
Attorney's application asserted that law enforcement had
probable cause to believe that Romeu was involved as a
supplier in a drug trafficking organization. (Doc. 38-1;
38-3). Further, the application averred that there is
“probable cause to believe normal investigative
techniques (other than the relief presently requested) were
tried and failed, or reasonably appear to be unlikely to
succeed if tried or are too dangerous to employ.” (Doc.
38-1, ¶ 5.c.). The basis for the application was the
“Affidavit in Support of Application” sworn by
Troy S. Greenawald, a Pennsylvania State Police officer (Doc.
same day, March 24, 2016, President Judge Emeritus Correale
Stevens (“Judge Stevens”) of the Superior Court
of Pennsylvania issued an Order granting authorization for
the District Attorney's request to intercept the wire and
electronic communications. (Doc. 38-2). Judge Stevens found
that the District Attorney made a proper showing of probable
cause to believe that Romeu was engaged in drug trafficking
and that the investigation warranted a wiretap.
April 9, 2016, Romeu was arrested by the Pennsylvania State
Police and charged with various Pennsylvania Drug Act
offenses, including Conspiracy to Deliver and Possess with
Intent to Deliver Drugs and Possession with Intent to
Distribute Drugs. (Doc. 50, at 6). On March 28, 2018, a
criminal complaint was filed by Homeland Security
Investigations Special Agent John Arruda in the Middle
District of Pennsylvania against Romeu charging one count of
conspiracy to distribute and possess with intent to
distribute methamphetamine. (Id.).
April 3, 2018, the Government filed a two-count indictment
against Defendant Romeu, alleging violations of conspiracy to
distribute and possess with intent to distribute
methamphetamine and possession with intent to distribute
methamphetamine under Title 21 of the United States Code.
(Doc. 1). Thereafter, the Commonwealth of Pennsylvania
withdrew its charges against Romeu. (Doc. 50, at 7). On April
10, 2018, Magistrate Judge Joseph Saporito, Jr., arraigned
Romeu, and Romeu entered a plea of not guilty.
(Id.). On October 11, 2018, Romeu filed the instant
pretrial motion. (Doc. 37).
Romeu, in his motion and supporting briefs, sets forth
several grounds to suppress evidence obtained from the
interception of Defendant Romeu's telephone calls and
text messages pursuant to the March 24, 2016, Order and the
fruits of that evidence. (Doc. 37). First, Romeu asserts that
the interception which was approved upon review of the March
24, 2016, Affidavit by Trooper Troy S. Greenawald amounts to
an unlawful interception pursuant to 18 U.S.C. §
2518(10)(a)(i). (Doc. 39, at 5). Next, Romeu argues that the
Judge Stevens' March 24, 2016, Order is “facially
deficient” under 18 U.S.C. § 2518(10)(a)(ii) and
evidence derived therefrom should be suppressed.
(Id.). Finally, Romeu argues that law enforcement
failed to comply with the sealing requirements pursuant to 18
U.S.C. § 2518(8)(a), thus warranting suppression of the
evidence derived from the wiretap. (Id.). The Court
addresses each of Romeu's contentions separately. For the
reasons that follow, the Court will deny Romeu's motion
Unlawful Interception of Communications Pursuant to 18 U.S.C.
Romeu sets forth two grounds in support of his argument that
the communications at issue were unlawfully intercepted and
should be suppressed pursuant to 18 U.S.C. §
2518(10)(a)(i). First, Romeu argues that the March 24, 2016,
Affidavit by Trooper Troy S. Greenawald (Doc. 38-3), which
was submitted in support of the District Attorney's
application for an order to gain authorization to intercept
wire and electronic communications, on its face fails to
furnish probable cause for the interception. (Doc. 39, at 5).
Second, Romeu argues the Affidavit contains numerous
misstatements and omissions made with reckless disregard for
the truth that, when corrected under Franks v.
Delaware, 438 U.S. 154 (1987), and United States v.
Yusuf, 461 F.3d 374 (3d Cir. 2006), do not support a
finding of probable cause or necessity pursuant to Title III
(id.). To that end, Romeu requests a Franks
Hearing to correct the March 24, 2016, Affidavit by Trooper
Greenawald. (Id.). For the reasons that follow, the
Court rejects Romeu's arguments and will deny his request
for a Franks Hearing and suppression of the
intercepted communication under 18 U.S.C. §
2518(10)(a)(i). The Court will first address Romeu's
arguments with respect to the Affidavit's showing of
probable cause on its face and then address Romeu's
arguments under Franks v. Delaware.
Title III Requirements
18 U.S.C. § 2518(10)(a)(i), an “aggrieved person .
. . may move to suppress the contents of any wire or oral
communication intercepted pursuant to this chapter, or
evidence derived therefrom, on the grounds that the
communication was unlawfully intercepted.” A
communication is unlawfully intercepted if “there is a
failure to satisfy any of [the] statutory requirements that
directly and substantially implement congressional intent to
limit the use of intercept procedures to those situations
clearly calling for the employment of this extraordinary
investigative device.” United States v.
Giordano, 416 U.S. 505, 527 (1975).
United States v. Vento, 533 F.2d 838, 849 (3d Cir.
1976), the statutory requirements that directly and
substantially implement Congress's intent are set forth
in 18 U.S.C. § 2518(3), which provides that before
issuing an order authorizing a Title III wiretap, a judge
must determine, based on the application provided, that:
(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular
communications concerning that offense will be obtained
through such interception;
(c) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous;
(d) . . . there is probable cause for belief that the
facilities from which, or the place where, the wire, oral, or
electronic communications are to be intercepted are being
used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in the
name of, or commonly used by such person.
18 U.S.C. § 2518(3). In light of the statutory text, the
Title III requirements can be summarized to require probable
cause (pursuant to 18 U.S.C. § 2518(3)(a), (b), and (d))
and necessity for the wiretap (pursuant to 18 U.S.C. §
2518(c)). If any of the § 2518(3) requirements are not
met by the wiretap application, “then the authorization
and any surveillance pursuant to it were improper.”
Vento, 533 F.2d at 847. Additionally, if the
surveillance is improper, then the interception is unlawful
pursuant to 18 U.S.C. § 2518(10)(a)(i), and “the
government could not use the fruits of that surveillance at
trial or to further its investigation.” Id.
Wiretap Affidavit's Basis for Probable Cause on Its
argues that the March 24, 2016, Affidavit fails to furnish
probable cause on its face because the Affidavit's
“recitation of facts in support of a probable cause
finding amounts [sic] little more than speculation
without adequate basis in actual observation of Mr. Romeu by
law enforcement.” (Doc. 39, at 31). The Court
III requires an applicant to show probable cause in three
different contexts. “[T]he first is that an individual
has or is about to commit one of several enumerated offenses
. . .; the second[, ] that particular communications relating
to the charged offense will be obtained through the
interception; and third[, ] that the premises where the
interception will be made are being used in connection with
the charged offense.” United States v.
Armocida, 515 F.2d 29, 35 (3d Cir. 1975).
cause itself is a “fluid concept” that
“turn[s] on the assessment of probabilities in
particular factual contexts.” Illinois v.
Gates, 462 U.S. 213, 232 (1983). It may be, and often
is, inferred from “the type of crime, the nature of the
items sought, the suspect's opportunity for concealment
and normal inferences about where a criminal might hide
[evidence].” United States v. Jones, 994 F.2d
1051, 1057 (1993). While “[p]robable cause . . .
requires more than mere suspicion; . . . it does not require
that the officer have evidence sufficient to prove guilt
beyond a reasonable doubt.” Orsatti v. New Jersey
State Police, 71 F.3d 480, 482-83 (3d Cir. 1995).
Accordingly, “because probable cause is a
‘practical, nontechnical conception,' we are
concerned with ‘the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.'”
United States v. Stearn, 597 F.3d 540, 554 (3d Cir.
2010) (quoting Gates, 462 U.S. at 231) (citation and
quotations omitted). To that end, the Third Circuit has held
that courts “must apply a ‘common sense
approach,' based on the totality of the circumstances, to
determine whether there was probable cause.”
O'Connor v. City of Phila., 233 Fed.Appx. 161,
164 (3d Cir. 2007) (quoting Paff v. Kaltenbach, 204
F.3d 425, 436 (3d Cir. 2000)).
support of his argument that the Greenawald Affidavit does
not support a finding of probable cause on its face, Romeu
For example, in relation to the events of March 12, 2016,
there is nothing in the Affidavit corroborating
Greenawald's musings-nothing to corroborate that
Bainbridge was in fact waiting on his supplier to arrive
before 6:00 p.m.; nothing to corroborate the suggestion that
the ‘bag in [Mr. Romeu's] right hand' and the
‘box under [Mr. Romeu's] right arm' related to
drug trafficking; and nothing to corroborate the notion that
the individual who texted Bainbridge after Mr. Romeu left
wished to purchase methamphetamine or did so. This is the
case even though law enforcement had the means to obtain
corroboration-the Affidavit states that ‘[b]etween
February 19, 2016 and March 19, 2016, a reliable confidential
informant made four (4) ‘controlled purchases' of
methamphetamine from David Joseph Bainbridge, Jr., at
locations within Schuylkill County, Pennsylvania at the
direction of your Affiant.” (Decl. Ex. C ¶ 41).
Despite the existence of this confidential informant,
however, the Affidavit does not state that any controlled
purchases were attempted to confirm Greenawald's
speculation that Bainbridge did not possess methamphetamine
prior to Mr. Romeu's arrival and did possess it
(Doc. 39, at 32).
making this argument, the Court finds that Romeu adds a
requirement that is not necessary for a showing of probable
cause when he asserts that additional controlled purchases
should have been made or attempted to confirm that Bainbridge
did not possess methamphetamine prior to Romeu's arrival
at Bainbridge's residence and to confirm that he
possessed methamphetamine thereafter. Romeu's argument
that the Affidavit fails to establish probable cause on its
face is premised upon several isolated passages which Romeu
concludes are not corroborated. In so arguing, Romeu seems to
assert that the Trooper needed to be certain of Romeu's
guilt. But see Orsatti, 71 F.3d at 482-83
(“Probable cause . . . requires more than mere
suspicion; . . . [but] it does not require that the officer
have evidence sufficient to prove guilt beyond a reasonable
doubt.”). To that end, the Affidavit need not provide
corroboration for each and every statement, but rather the
Trooper may draw reasonable conclusions based on his own
experiences and common sense.
reviewing the Greenawald Affidavit, the Court finds that the
Affidavit on its face provides a sufficient showing of
probable cause. The Affidavit makes clear that Romeu was not
a target of the investigation until after law enforcement
received a wiretap order for Bainbridge, an original target
of the investigation, and from whom a confidential informant
purchased methamphetamine (see Doc. 38-3, ¶
55). The Affidavit then summarizes numerous telephone
conversations which suggest that Bainbridge was supplying
methamphetamine to more than six additional individuals.
(See Id. at ¶¶ 62-64, 76-79, 114-115).
After Bainbridge ran out of his supply of methamphetamine,
the Affidavit details numerous conversations where Bainbridge
indicates to those individuals that he had no methamphetamine
to supply, all of which occurred on or before March 12.
(See Id. at ¶¶ 100, 114-116). On March 12,
2016, at approximately 4:35 p.m., an incoming call was placed
to Bainbridge from Jeremy Lutz, an individual to whom
Bainbridge allegedly supplied methamphetamine. (Id.
at ¶ 119). During that call, and in subsequent text
messages and phone calls, Bainbridge ultimately advised Lutz
that Bainbridge's source of methamphetamine would be at
his residence before 6:00 p.m. on that day. (See Id.
at ¶¶ 119-127).
March 12, 2016, at approximately 6:02 p.m., members of law
enforcement observed a vehicle enter Bainbridge's
driveway, and an Hispanic male, at the time believed to be
Angel Romeu, exited the driver's side of the vehicle,
quickly entered the residence, and was carrying a bag in his
right hand. (Id. at ¶¶ 130-131). At 6:07
p.m., Romeu was seen exiting the Bainbridge residence
carrying a box under his right arm, which he placed in the
driver's side, rear seat of the vehicle, entered the
vehicle, and subsequently departed. (Doc. 38-3, ¶ 131).
Immediately thereafter, Bainbridge began meeting with
methamphetamine customers throughout the evening of March 12,
2016, and cryptically advised a customer that he could
provide methamphetamine. (See Doc. 38-3,
¶¶ 133, 138-139). Consequently, as the Government
highlighted in its brief, “[t]he affidavit makes clear,
based on intercepted communications over Bainbridge's
phone, that Bainbridge was waiting for his supplier and
Romeu, who was known to law enforcement and has a prior
conviction for trafficking methamphetamine, shows up at the
scheduled time for Bainbridge's supplier to arrive with a
package. This clearly lays the foundation for building
probable cause to believe that Romeu is involved in drug
trafficking.” (Doc. 50, at 33). Put differently, the
timing of the events and surrounding circumstances give rise
to an inference that Romeu was, at this point, engaged in
members of law enforcement followed Romeu to the Tiger's
Den gas station located on State Route 0061, where he
remained for a period of time. (Doc. 38-3, ¶ 132). He
was then followed directly to a residence, which was presumed
to be the residence utilized for the storage of items related
to this conspiracy. (Id. at ¶¶ 132, 134).
On March 14, 2016, members of law enforcement began
conducting physical surveillance of the residence believed to
belong to Angel Romeu. (Id. at ¶ 141).
the course of the next few weeks, Romeu was seen at the
Bainbridge Residence numerous times. On March 15, 2016, Romeu
was observed exiting Bainbridge's residence and was seen
approaching the passenger side of the vehicle before
ultimately departing. (Id. at ¶ 145). On March
22, 2016, Romeu was seen exiting the Bainbridge residence
carrying a bag similar to a duffel bag in his right hand.
(Id. at ¶ 147). On that same day, a
conversation intercepted on Bainbridge's phone revealed
that Bainbridge cryptically asked if Romeu wanted to meet him
for an exchange of narcotics, i.e., “gonna take a ride
go grocery shopping get some apples or sumptin'?”
(Id. at ¶ 161-162). Finally, on March 23, 2016,
law enforcement saw Romeu arrive at Bainbridge's
residence, where the following exchange was described in the
171. On March 23, 2016 at approximately 8:56 a.m., members of
law enforcement observed a dark colored, Chevrolet
extended-cab pick-up truck bearing Pennsylvania Registration
number RT66616 arrive at the residence of David Bainbridge
and back in to the driveway. Angel Romeu was subsequently
observed exiting the vehicle.
172. At approximately 8:57 a.m., David Bainbridge arrived at
his residence operating his Chevrolet pick-up truck.
Bainbridge parked next to the Romeu vehicle with his
passenger door adjacent to that of the Romeu vehicle. Both
Romeu and Bainbridge then opened the passenger doors of the
Romeu vehicle. Both also examined the Romeu vehicle for a
period of time. Bainbridge then briefly opened the passenger
door of his vehicle.
173. After a period of time, all doors to the Romeu vehicle
were closed. Bainbridge entered the passenger side of his
vehicle and removed what appeared to be a white, grocery type
bag. Both Romeu and Bainbridge subsequently entered the
Bainbridge residence. Your Affiant believes that the
aforementioned bag was removed from the Romeu vehicle and
placed in the Bainbridge vehicle for a brief period of time
while the passenger doors to both vehicles were open.
174. On March 23, 2016, at approximately 9:54 a.m., Angel
Romeu was observed by members of law enforcement exiting the
residence of David Bainbridge. Romeu then entered the
aforementioned Chevrolet pick-up truck and departed the area.
Romeu then proceeded directly to his residence . . . .
(Doc. 38-3, ¶¶ 171-174).
light of the foregoing, it sensibly follows that the
Affidavit on its face provided sufficient facts to furnish
probable cause pursuant to the three requirements under 18
U.S.C. § 2518(3) related to probable cause. Based on his
twenty-three years of experience as a member of the
Pennsylvania State Police, the extensive training he received
in narcotics investigations, Romeu's prior history of
being involved in narcotics trafficking, and the extensive
information obtained previously in the investigation as
detailed above, Trooper Greenawald reasonably concluded that
there was probable cause to believe Romeu was supplying
methamphetamine to Bainbridge in satisfaction of 18 U.S.C.
§ 2518(3)(a). Moreover, because the investigation
revealed Romeu's telephone number, which was in frequent
contact with Bainbridge's telephone number, Greenawald
reasonably concluded that intercepting Romeu's number
would yield particular conversations concerning the narcotics
trafficking thereby satisfying the requirements under 18
U.S.C. § 2518(3)(b) and (d). Accordingly, Romeu's
argument that the Affidavit did not furnish probable cause on
its face lacks merit.
Wiretap Affidavit Omissions and
asserts that the March 24, 2016, Wiretap Affidavit contains
numerous misstatements and omitted material facts with
reckless disregard for the truth and, when corrected under
Franks v. Delaware, 438 U.S. 154 (1987), and
United States v. Yusuf, 461 F.3d 374 (3d Cir. 2006),
the Affidavit would fail to satisfy the probable cause and
necessity requirements pursuant to 18 U.S.C. §
2518(3)(a)-(d). (Doc. 39, at 5, 36-51). Accordingly, Romeu
contends that, pursuant to Franks, he is entitled to
a hearing to correct the Affidavit. (See, e.g., Doc.
39 at 41, 43, 45.). Romeu further asserts that
because the Affidavit, after correction, would not support a
finding of probable cause and necessity, the wiretap
interception would be unlawful under 18 U.S.C. §
2518(10)(a)(i). (Doc. 39, at 21). The Court disagrees and
does not find that Romeu is entitled to a Franks
Hearing or suppression of the intercepted communications.
Franks v. Delaware, the United States Supreme Court
held that a criminal defendant has a right to challenge the
truthfulness of factual statements made in an affidavit of
probable cause supporting a warrant. 438 U.S. 154. The Court
[t]o mandate an evidentiary hearing, the challenger's
attack must be more than conclusory and must be supported by
more than a mere desire to cross-examine. There must be
allegations of deliberate falsehood or of reckless disregard
for the truth, and those allegations must be accompanied by
an offer of proof. They should point out specifically the
portion of the warrant affidavit that is claimed to be false;
and they should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable statements
of witnesses should be furnished, or their absence
satisfactorily explained. Allegations of negligence or
innocent mistake are insufficient . . . . Finally, if these
requirements are met, and if, when material that is the
subject of the alleged falsity or reckless disregard is set
to one side, there remains sufficient content in the warrant
affidavit to support a finding of probable cause, no hearing
is required. On the other hand, if the remaining content is
insufficient, the defendant is entitled, under the Fourth and
Fourteenth Amendments, to his hearing. Whether he will
prevail at that hearing is, of course, another issue.
Franks, 438 U.S. at 171-72.
dealt only with misstatements, but the Third Circuit Court of
Appeals noted in United States v. Frost, 999 F.2d
737 (3d Cir. 1993), that the Franks test applies to
situations where affiants have omitted information from the
affidavit. Id. at 743 n.2 (citing United States
v. Calisto, 838 F.2d 711, 714-16 (3rd Cir.1988).
determining whether a statement was recklessly made, the
Third Circuit has explained,
the rule is that an assertion is made with reckless disregard
when viewing all the evidence, the affiant must have
entertained serious doubts as to the truth of his statements
or had obvious reasons to doubt the accuracy of the
information he reported. This definition provides two
distinct ways in which conduct can be found reckless: either
the affiant actually entertained serious doubts; or obvious
reasons existed for him to do so, such that the finder of
fact can infer a subjectively reckless state of mind.
United States v. Brown, 631 F.3d 638, 645 (3d Cir.
2011) (internal citations and quotation marks omitted).
Similarly, omissions are made with reckless disregard for the
truth “if an officer withholds a fact in his ken that
‘any reasonable person would have known that this was
the kind of thing the judge would wish to know.'”
Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)
(quoting United States v. Jacobs, 986 F.2d 1231,
1235 (8th Cir. 1993)). Although Franks and its
progeny dealt primarily with probable cause, the same
analysis applies where the affiant omits or misstates
material information with respect to the necessity
requirement under Title III. See, e.g., United States v.
Robinson, 513 F.Supp.2d 169, 177 (M.D. Pa. 2007).
right to a Franks Hearing is not absolute. Rather,
“[t]he defendant must first (1) make a
‘substantial preliminary showing' that the affiant
knowingly or recklessly included a false statement in or
omitted facts from the affidavit, and (2) demonstrate that
the false statement or omitted facts are ‘necessary to
the finding of probable cause.'” United States
v. Pavulak, 700 F.3d 651, 665 (3d Cir. 2012) (quoting
Yusuf, 461 F.3d at 383-84).
preliminary showing [that a defendant must make] is no light
burden and puts the defendant to task by requiring some offer
of proof that materially false statements were recklessly or
intentionally made.” United States v. Darby,
No. 1:14-CR-00123, 2015 WL 13344905, at *3 (M.D. Pa. Aug. 9,
2015). More specifically, a defendant must “allege with
specificity what was false in the affidavit, must provide
proof, must allege that the affiant had a culpable state of
mind, and must allege that the remaining information is
insufficient to support a finding of probable cause.”
United States v. Yokshan, 431 Fed.Appx. 170, 173 (3d
Cir. 2011) (citing Franks, 438 U.S. at 171-72).
“Conclusory allegations of untruthfulness are
insufficient to meet this burden; the defendant must provide
an offer of proof contradicting the affidavit, such as sworn
or otherwise reliable statements from witnesses.”
Darby, 2015 WL 13344905, at *3 (citing
Yokshan, 431 Fed.Appx. at 173). Similarly,
conclusory allegations regarding the second element of
materiality are insufficient to entitle a defendant to a
Franks Hearing. See, e.g.,
United States v. Heilman, 377 Fed.Appx. 157, 180 (3d
Cir. 2010) (citing Franks, 438 U.S. at 155-56)
(defendant must make a substantial preliminary showing that
the omission or misstatement was necessary to the finding of
probable cause or necessity).
defendant has successfully made this preliminary showing, a
defendant is entitled to a Franks Hearing. At the
Franks Hearing, a “defendant must prove by a
preponderance of the evidence ‘that the affiant
knowingly and deliberately, or with reckless disregard for
the truth, made false statements or omissions that create a
falsehood in applying for a warrant,' and secondly, that
the false statement or omission was material” to a
finding of necessity. Id. at *4 (quoting
Yusuf, 641 F.3d at 383).
light of the requirements under Title III, to be entitled to
a Franks Hearing, Romeu must make a preliminary
showing that the Affiant Trooper Greenawald knowingly or
recklessly made misstatements or omissions that undermine
either a finding of probable cause or necessity, as required
by 18 U.S.C. § 2518(3)(a)-(d). In so doing, as recited
above, Romeu must point to specific statements in the
Affidavit or specific omissions, offer proof that the
statements were made or omitted recklessly, and demonstrate
that the misstatements or omissions are necessary to the
finding of probable cause or necessity. Pavulak, 700
F.3d at 665.
Omissions and Misstatements Relating to Probable
points to three omissions and one misstatement related to
probable cause which he asserts require correction under
Franks and Yusuf and, when the Affidavit is
corrected, it fails to support a finding of probable cause.
(Doc. 39, at 32-34). After reviewing the omissions and
misstatement to which Romeu points, the Court concludes that
Romeu has not met his burden of showing that he is entitled
to a Franks Hearing relating to probable cause.
first contends that in relation to the events of March 12,
[t]he Affidavit omits mention of a red sport-utility vehicle
that pole camera recordings (produced in discovery) show
pulling into Bainbridge's driveway at 6:11 p.m. and
departing Bainbridge's driveway at 6:13 p.m. Had the
Affidavit mentioned the arrival of this red SUV, the issuing
judge-even if she agreed that investigators had reason to
believe Bainbridge was waiting on a drug delivery-likely
would have concluded that investigators had no more reason to
suspect Mr. Romeu of making the delivery than the unknown
driver of the SUV.
(Doc. 39, at 32-33).
making this assertion, Romeu fails to point to any specific
evidence to support the claim. As discussed earlier, to be
entitled to a Franks Hearing, “[t]he defendant
must first (1) make a ‘substantial preliminary
showing' that the affiant knowingly or recklessly
included a false statement in or omitted facts from the
affidavit, and (2) demonstrate that the false statement or
omitted facts are ‘necessary to the finding of probable
cause.'” Pavulak, 700 F.3d at 665 (quoting
Yusuf, 461 F.3d at 383-84). Importantly, a defendant
cannot satisfy his burden of showing entitlement to a
Franks Hearing with only conclusory allegations.
Heilman, 377 Fed.Appx. at 180. A review of the
record indicates that Romeu did not submit to the Court the
pole camera recordings at issue or any other relevant
evidence to substantiate the omission. Without such evidence,
Romeu's assertion is entirely unsupported and does not
provide the showing necessary to justify a Franks
even assuming arguendo that Romeu had satisfied the
first Franks element, the Court does not find this
omission necessary to the finding of probable cause
considering the other evidence gathered in the investigation
which Romeu does not contravene. Romeu does not contest the
parts of the Affidavit which aver that there were
numerous meetings and phone calls between Bainbridge
and Romeu which law enforcement reasonably concluded were
related to drug trafficking. Additionally, Romeu had a
history of distributing methamphetamine. (Id. at
¶ 17). While “[p]robable cause . . . requires more
than mere suspicion; . . . it does not require that the
officer have evidence sufficient to prove guilt beyond a
reasonable doubt.” Orsatti, 71 F.3d at 482-83.
Romeu does not demonstrate how the alleged omission of the
information regarding the SUV contradicts the trooper's
inference, based on his own experience and training, that
Romeu, in light of the totality of the circumstances not
contested by Romeu, was engaged in narcotics trafficking. As
such, Romeu has failed to satisfy his burden of making a
substantial preliminary showing” with respect to the
pole camera omission. Yusuf, 461 F.3d at 383.
then points to an omission of information contained in the
Call Database Listing related to the events of March 12,
2016, which he contends is material on the following basis:
The Call Database Listing (produced in discovery) indicates
that the person who sent a text message to Bainbridge after
Mr. Romeu departed the area shared an interest in vehicle
rehabilitation and repair with Bainbridge, undermining the
notion that his innocuous message, “Hey are you gna b
around in an hour or so, ” related to a desire to
(Doc. 39, at 33).
omission is subject to the same defects as discussed above:
Romeu fails to provide appropriate evidence to contradict the
affidavit and the omission fails to consider the totality of
the circumstances. The only evidence to which Romeu cites is
a Call Database Listing which shows that on March 13, 2016,
Bainbridge spoke to an individual bearing the telephone
number (570) 294-6203. (Doc. 38-6, at 2). During that
conversation, the intercepting officer provided the following
synopsis: “DB talks to a guy about a 4 wheeler.”
(Doc. 38-6, at 2). This synopsis does not substantiate
Romeu's claim that Bainbridge and the person who sent
Bainbridge a text message clearly “shared an interest
in vehicle rehabilitation and repair.” (Doc. 39, at
33). According to the listing, the call occurred on March 13,
2016, but Romeu contends that it contradicts the text message
sent on March 12, 2016. (Doc. 38-6, at 2). The Court cannot
discern the relationship between the call and the text
message, and Romeu does not provide any explanation.
Additionally, the Court notes that, according to the
Affidavit, the text message to which Romeu cites was sent
from the telephone bearing the number (570) 294-2903
(see Doc. 38-3, ¶ 138), yet the call in the
database which Romeu references came from the telephone
bearing the number (570) 294-6203 (Doc. 38-6, at 2). Again,
Romeu provides no explanation for how these telephone numbers
are related. Without any further evidence, the Court cannot
conclude that Romeu provided sufficient evidence to satisfy
his burden of showing that the omission was material to the
finding of probable cause. Yusuf, 461 F.3d at 383.
in arguing that the omission was material, Romeu fails to
consider how, among other things, on March 12, 2016, after
Romeu departed the area, Bainbridge began sending messages to
multiple individuals that cryptically suggested that he was
now able to provide methamphetamine to them. (See
Doc. 38-3, ¶¶ 133, 138-39). This, in light of the
other facts - including Romeu's prior history, the
Trooper's training, and the other circumstances uncovered
in the investigation - adequately furnish probable cause to
believe that Romeu was involved in the narcotics trafficking.