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United States v. Romeu

United States District Court, M.D. Pennsylvania

January 9, 2020

UNITED STATES OF AMERICA,
v.
ANGEL ROMEU, Defendant.

          MEMORANDUM OPINION

          Robert D. Mariani, United States District Judge.

         I. Introduction

         On 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.

         II. Factual Background and Procedural History

         In 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. 38-3).

         On that 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. (Id.).

         On 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.).

         On 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).

         III. Analysis

         Defendant 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 to suppress.

         A. Unlawful Interception of Communications Pursuant to 18 U.S.C. § 2518(10)(A)(i)

         Defendant 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.

         1. Title III Requirements

         Under 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).

         As per 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.

         2. Wiretap Affidavit's Basis for Probable Cause on Its Face

         Romeu 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 disagrees.

         Title 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).

         Probable 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)).

         In support of his argument that the Greenawald Affidavit does not support a finding of probable cause on its face, Romeu argues:

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 afterward.

(Doc. 39, at 32).

         In 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.

         In 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).

         On 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 narcotics trafficking.

         Thereafter, 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).

         Over 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 affidavit:

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).

         In 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.

         3. Wiretap Affidavit Omissions and Misrepresentations

         Romeu 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.

         In 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 explained that

[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.

         Franks 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).

         In 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).

         The 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).

         “[The] 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).

         Once a 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).

         In 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.

         a. Omissions and Misstatements Relating to Probable Cause

         Romeu 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.

         Romeu first contends that in relation to the events of March 12, 2016,

[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).

         In 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 Hearing.

         Furthermore, 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.

         Romeu 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 purchase drugs.

(Doc. 39, at 33).

         This 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.

         Furthermore, 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, ΒΆΒΆ 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. Thus, ...


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