                       NOTICE: NOT FOR OFFICIAL PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                   AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                      IN THE
              ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                       STATE OF ARIZONA, Appellant,

                                          v.

                 ROBERT WILLIAM BLACKWELL, Appellee.

                              No. 1 CA-CR 18-0214
                                  1 CA-CR 18-0215
                                  (Consolidated)
                                FILED 4-18-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2017-000532-001
                            CR 2017-005605-001
                  The Honorable Jose S. Padilla, Judge

                                    AFFIRMED


                                     COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellee
                         STATE v. BLACKWELL
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1            The State challenges the superior court’s decision to grant
Robert Blackwell’s request for an evidentiary hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), and the court’s subsequent suppression order.
For the reasons that follow, we affirm.

                             BACKGROUND

¶2            On September 3, 2015, Officer Newton requested a search
warrant for Blackwell’s residence, asserting he had probable cause to
believe Blackwell—a prohibited possessor—was committing the crime of
misconduct involving weapons. In relevant part, Newton’s affidavit stated
he had been contacted by Special Agent Wilbur of the Federal Bureau of
Investigation (“FBI”) and

      SA Wilbur relayed the following information to your affiant
      that he learned from the Confidential Informant [(“CI”)]
      deemed reliable by the FBI[.]

      On August 29, 2015, an unknown person or persons fired five
      rounds at Blackwell’s residence . . . during the early morning
      hours. Following the gunfire, Blackwell ran out to the front
      of his home . . . carrying an AR-15 style rifle and a .380
      handgun. The AR-15 style rifle is described as a Mossberg
      brand, all black, with a scope and bipod. The .380 was
      described as a Bersa brand, silver, with a black handle. SA
      Wilbur informed your affiant the firearms were still located
      inside the residence within the last 48 hours.

Newton also explained that through a field interrogation report he
corroborated the fact that a shooting had occurred on August 29, 2015.

¶3           The warrant was issued and later expanded by amendment
when, in addition to finding the prohibited weapons, officers found
evidence of drug use in Blackwell’s home. In CR2017-000532-001, the State


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                           Decision of the Court

charged Blackwell with one count of possession or use of narcotic drugs
and two counts of misconduct involving weapons.

¶4            On March 3, 2016, Officer Newton requested another search
warrant for Blackwell’s residence after Special Agent Wilbur contacted him
stating he “had information from a reliable Confidential Informant” that
Blackwell possessed a “Smith and Wesson 9mm handgun with a serial
number of HFN3910.” Newton’s affidavit did not include any
corroborating information regarding Blackwell’s possession of the Smith
and Wesson handgun. The search warrant was issued and later expanded
by amendment when evidence of narcotic sales was found during the
search of Blackwell’s residence. In CR2017-005605-001, the State charged
Blackwell with one count of possession of narcotic drugs for sale and
possession of drug paraphernalia.

¶5            In each pending case, Blackwell filed a combined request for
a Franks hearing and motion to suppress, arguing the affidavits’ statements
regarding the CI were either false or recklessly disregarded the truth by
omitting relevant information about the CI. In response, the State argued a
Franks hearing was unjustified because Blackwell had not met the threshold
showing “that the detective made a false statement, either knowingly,
intentionally, or recklessly” and, regardless, the search warrants were
supported by probable cause. The superior court granted the request for a
hearing.

¶6             FBI Special Agent Thompson, Officer Newton, and the CI
testified at the hearing. Thompson testified that he and Special Agent
Wilbur recruited the CI after she and Blackwell were arrested for narcotics
trafficking in June 2015. The CI agreed to provide the agents with
information on “narcotics” in exchange for benefits, the precise details of
which were somewhat disputed at the hearing. Thompson also testified
that (1) he and Wilbur were aware the CI had ongoing issues with drug
addiction; (2) the CI had not relayed unreliable information before
informing on Blackwell; and (3) between June and September 2015 she had
provided at a “minimum” 10 good tips.

¶7            Officer Newton testified he corroborated the information
Wilbur relayed to him for the initial September warrant through a field
interrogation report that confirmed a shooting occurred on August 29, 2015.
When asked if the report contained any information besides “shots fired,”
Newton responded that it said everyone at the residence was okay, and the
shooting had been reported by a neighbor, not Blackwell. Concerning the
initial March warrant, Newton testified Wilbur contacted him in late


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February 2016 and told him “[t]he CI again contacted [Wilbur with]
information that Mr. Blackwell was in possession of a Smith and Wesson
handgun this time.”

¶8            As to his familiarity with the CI, Officer Newton testified he
knew the CI because she was a suspect in his June 2015 investigation of
Blackwell, and he knew she was Wilbur’s CI for the search warrants at
issue. When asked on cross-examination whether he knew the CI was a
reliable source, Newton stated the CI’s reliability was “deemed by the FBI.”
He also responded affirmatively when asked “You had no idea why they
deemed her reliable; correct?” Finally, the following exchange occurred on
redirect:

       Q. [I]n regards to [the CI’s] reliability, was the information
       [she] provided for the September search, did that turn out to
       be accurate?

       A. Yes.

       ...

       Q. So you had some information about her reliability; just
       not the rest of her involvement with the FBI; is that right?

       A. I can only state to the reliability of the information
       provided by sergeant or Special Agent Wilb[u]r.

¶9              Ruling from the bench, the superior court focused on the
initial September warrant and stated the “problem” is the issuing court was
provided only a “blanket statement” regarding the CI’s reliability. After a
thorough discussion of the affidavits, the court granted the motions to
suppress, explaining that “[s]imply telling us that the FBI believes that [a
CI is] reliable does not cut it for the courts.”

¶10           The superior court provided additional analysis in its written
order, finding the initial September and March search warrants deficient
because “the [commissioner] was not provided sufficient information with
which to independently weigh the CI’s credibility and reliability,” and
“[t]he Court was unable to find any law that supports the proposition, that
once the ‘FBI’ determines a CI to be reliable, that such a finding by the FBI,
or any law enforcement agency requesting a search warrant, relieves the
issuing court from making its own determination.” Thus, the court
suppressed the evidence gathered pursuant to the initial warrants as well
as “any evidence gathered pursuant to [the] execution of a second Search


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                            STATE v. BLACKWELL
                              Decision of the Court

Warrant on the same day which relied on the findings and execution of the
first Search Warrant or . . . on [the] evidence gathered pursuant [to the]
execution of the initial warrants.” The court discounted the other “salient
points” in the affidavit, finding they did not establish probable cause and
rejected the State’s argument that the evidence obtained was admissible
under the good-faith exception because the “State agents chose not to provide
the issuing court with sufficient information about the CI on multiple
occasions despite the fact the information existed.”

¶11         Both cases were dismissed without prejudice at the State’s
request. The State then appealed the suppression orders pursuant to
Arizona Revised Statutes (“A.R.S.”) section 13-4032(6).

                                 DISCUSSION

       A.      Sufficiency of Blackwell’s Hearing Request

¶12           The State argues Blackwell was not entitled to a Franks
hearing because he did not “present specific allegations pointing to a
reckless disregard for the truth” and his allegations were unsupported by
an offer of proof. We review whether a defendant was entitled to a Franks
hearing de novo. See Frimmel v. Sanders, 236 Ariz. 232, 238, ¶ 25 (App. 2014).

¶13            A magistrate or judge may issue a search warrant only if the
affidavit seeking the warrant establishes probable cause. U.S. Const.
amend. IV; A.R.S. § 13-3913; State v. Carter, 145 Ariz. 101, 110 (1985) (finding
probable cause established “if a reasonably prudent person, based upon the
facts known by the [affiant], would be justified in concluding the items
sought are connected with the criminal activity and that they would be
found at the place to be searched”). Affiants are required to provide a
magistrate “with a substantial basis for determining the existence of
probable cause” because the magistrate’s determination must be
independent—it “cannot be a mere ratification of the bare conclusions of
others.” Illinois v. Gates, 462 U.S. 213, 239 (1983).

¶14            If a defendant makes a “substantial preliminary showing that
a false statement knowingly and intentionally, or with a reckless disregard
for the truth, was included . . . in the warrant affidavit, and . . . the allegedly
false statement is necessary to a finding of probable cause,” Franks, 438 U.S.
at 155–56, the Fourth Amendment entitles the defendant to an evidentiary
hearing concerning whether the search warrant contains “false or
incomplete information,” Frimmel, 236 Ariz. at 239, ¶ 27 (authorizing a
Franks challenge when “it has been shown ‘a warrant affidavit valid on its
face . . . contains deliberate or reckless omissions of facts that tend to


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                          STATE v. BLACKWELL
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mislead’” (citation omitted)); see Carter, 145 Ariz. at 109 (adding deliberate
or reckless omissions of material facts as grounds to support a Franks
request). The State correctly notes that defendants may not “merely claim
the affidavit constitutes [a falsity] and hope[] an evidentiary hearing”
provides a basis for relief. However, a defendant’s motion does not have
to conclusively establish wrongdoing; rather, it must include

       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 of sworn or otherwise reliable statements of
       witnesses should be furnished, or their absence satisfactorily
       explained. Allegations of negligence or innocent mistake are
       insufficient.

Franks, 438 U.S. at 171 (emphasis added).

¶15            Blackwell alleged the CI’s tips were the only factual bases
establishing probable cause for the belief that he was in possession of the
guns subject to the initial search warrants in September and March.
Blackwell supported these allegations by bracketing the portions of the
affidavits stating the CI was reliable and those relying on the CI’s tip. He
also alleged the affidavits omitted information calling into question the CI’s
reliability, such as the CI’s inexperience, the fact she was receiving
compensation in the form of money and/or reduced criminal charges, and
she was a heroin addict. As for affidavits or the lack thereof, Blackwell
explained he had attempted to discuss the CI’s history with Special Agent
Wilbur, who was not forthcoming, and had been unable to interview the CI
because of her status as a victim in another case. Ultimately, Blackwell’s
requests alleged, based on the limited information available to him at that
time, that the initial affidavits for the September and March search warrants
omitted any information upon which the issuing court could make
independent determinations regarding the reliability and veracity of the
CI’s tip. Thus, on this record, Blackwell made a substantial preliminary
showing that portions of the affidavits contained statements that recklessly
disregarded the truth and/or omitted material facts.

¶16           Because the CI’s tips in the initial September and March
warrants were the only factual grounds in the affidavits linking Blackwell
to the prohibited weapons, the alleged omissions were necessary to the
probable cause determination. Franks, 438 U.S. at 155–56; see also Gates, 462


                                      6
                           STATE v. BLACKWELL
                             Decision of the Court

U.S. at 238 (explaining that the probable cause determination asks
“whether, given all the circumstances set forth in the affidavit . . . there is a
fair probability that contraband or evidence of a crime will be found in a
particular place”); State v. Swanson, 172 Ariz. 579, 585 (App. 1992)
(“[P]robable cause cannot rest upon mere suspicion that a crime has
occurred.”). Accordingly, Blackwell met Franks’ threshold requirements,
and the court did not err in granting his request for a hearing.

       B.     The Franks Hearing

¶17            There are two components to a Franks evidentiary hearing.
First, the defendant has the burden of proving the affidavit contained
“perjury or [a] reckless disregard for the truth by a preponderance of the
evidence.” Frimmel, 236 Ariz. at 239, ¶ 28. If the affiant either (1) included
false or recklessly untrue statements or (2) omitted material information,
the court must “redraft the affidavit by deleting the falsehoods and adding
the omitted material facts.” State v. Buccini, 167 Ariz. 550, 554 (1991).
Second, the court must determine whether the redrafted affidavit is
sufficient to establish probable cause; if not, “the search warrant must be
voided and the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.” Franks, 438 U.S. at
156. We will affirm the court’s determination that the affiant made false
statements or recklessly disregarded the truth by omitting material facts
unless clearly erroneous, but we review the “court’s finding as to whether
a redrafted search warrant is sufficient to establish probable cause” de
novo. Buccini, 167 Ariz. at 555.

¶18            Here, the superior court did not use the precise language
found in Franks or its progeny, but its rulings can be fairly read as implicitly
finding that Officer Newton included false statements or omitted material
information from the initial September affidavit which, citing Wong Sun v.
United States, 371 U.S. 471 (1963), it found dispositive as to the other three
warrants. See Buccini, 167 Ariz. at 554 n.5 (explaining it was not critical the
superior court failed to use the precise language of the first prong because
“[i]n suppressing under Franks’ second prong, the [court] necessarily
considered and resolved the issues under the first”). The State does not
contest the court’s implicit finding concerning the September affidavit nor
does it challenge the court’s finding that the subsequent search warrants
are “fruits of the poison[ous] tree.” Consequently, we also focus our
analysis on the initial September affidavit.

¶19         The superior court re-evaluated the “totality of the
circumstances” in the affidavit, noting the lack of information regarding the


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CI’s credibility and the lack of other evidence corroborating the CI’s tip. See
Gates, 462 U.S. at 238 (explaining the totality of the circumstances approach
requires that the issuing court consider “all the circumstances set forth in
the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’
of persons supplying hearsay information” when determining whether
probable cause exists). After its re-evaluation, the court found the affidavit
insufficient to establish probable cause because, in relevant part, there was
“no evidence presented in the warrant of an ongoing enterprise involving
weapons” and although Blackwell was “alleged to have been seen by
someone” with the two guns “outside of his home after the shooting . . .
[n]o information was provided about the individual and the circumstances
under which the observations were made.” Although the court did not
explicitly base its ruling on a redrafted version of the initial September
affidavit, we find the court sufficiently satisfied Franks’ requirements and
note the State does not contest the form of the court’s analysis.

¶20           Given the absence of a redrafted affidavit in the record,
however, we find it appropriate to explain what information must be
removed or inserted pursuant to Franks before determining the redrafted
affidavit’s sufficiency.    First, we must remove Officer Newton’s
unsupported assertion that the CI was deemed reliable by the FBI.
Although not technically false, Newton’s use of this statement, coupled
with the material omissions, constituted a reckless disregard of the truth.
See Frimmel, 236 Ariz. at 239, ¶ 27 (explaining that an affiant cannot
“manipulate the inferences a magistrate will draw” (internal quotation and
citation omitted)). Moreover, as evidenced through his testimony, Newton
did not believe the CI was reliable; he merely accepted that she was reliable
because “it was deemed by the FBI.” See Franks, 438 U.S. at 165 (defining a
“truthful” statement as one in which “the information put forth is
believed”). Next, we insert the omitted facts that undermine the CI’s
accounts and prevented the issuing court from making a valid, independent
determination regarding the CI’s account: the CI was a heroin addict at the
time she provided the information, she provided the information to avoid
prosecution for her own crimes, and she was compensated by the FBI/the
State for being an informant.

¶21           As redrafted, the affidavit provides that Newton had reason
to believe Blackwell was committing the crime of misconduct involving
weapons because the FBI told him it had received such information from
an informant whose credibility is questionable at best, given the newly-
added facts undermining the CI’s credibility. The redrafted affidavit
contains no information bolstering the CI’s reliability (such as the number
of times she provided reliable tips), nor does it provide pertinent


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background information forming the basis for the CI’s purported
knowledge of Blackwell’s gun possession. See Franks, 438 U.S. at 165
(noting the affidavit should “recite ‘some of the underlying circumstances
from which the informant concluded’ that relevant evidence might be
discovered, and ‘some of the underlying circumstances from which the
officer concluded . . . the informant was ‘credible’ or his information
‘reliable’” (citation omitted)); United States v. Bishop, 264 F.3d 919, 924 (9th
Cir. 2001) (“When a search warrant is based solely on an informant’s tip,
the proper analysis is whether probable cause exists from the totality of the
circumstances to determine a sufficient level of reliability and basis of
knowledge for the tip.”). Such an affidavit is insufficient to establish
probable cause to search Blackwell’s residence for evidence of misconduct
involving weapons.

¶22             The State asserts the totality of the circumstances supports the
CI’s reliability and basis of knowledge because she lived with Blackwell and
she provided accurate tips for the FBI before she provided the information
about him for the September warrant. The State is correct to the extent this
information may have provided the issuing court an independent basis for
probable cause; however, we do not include it in the redrafted affidavit. See
Buccini, 167 Ariz. at 555 (inserting only those facts that would undermine
the original affidavit’s assertion); Carter, 145 Ariz. at 109 (same); Frimmel,
236 Ariz. at 241, ¶¶ 38, 39 (same); see also 2 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 4.4(c) at 697 (5th ed. 2012)
(“[A]ddition to the affidavit is appropriate only as to omitted information
tending to cast some doubt on the probable cause otherwise shown.”).

¶23            Additionally, the field report Newton relied on to corroborate
the CI’s tip was not offered as evidence at the hearing and, based on the
plain language of the affidavit and Newton’s testimony, seems to
corroborate only that Blackwell’s residence was the subject of a drive-by
shooting, not that Blackwell possessed weapons. See State v. Altieri, 191
Ariz. 1, 3, ¶¶ 9, 10 (1997) (explaining that corroboration “unrelated to any
criminal activity” is insufficient to bolster a tip that did not contain “a range
of details relating not just to easily obtained facts and conditions existing at
the time of the tip, but to future actions of third parties ordinarily not easily
predicted” (quoting Alabama v. White, 496 U.S. 325, 332 (1990)).

¶24           In Gates, the Supreme Court explained that an “officer’s
statement that ‘affiants have received reliable information from a credible
person’” is insufficient to provide the “substantial basis” required for a
magistrate’s independent determination of probable cause. 462 U.S. at 239
(quoting Aguilar v. Texas, 378 U.S. 108, 109 (1964)). Here, Newton avowed


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                          STATE v. BLACKWELL
                            Decision of the Court

he was given information from another officer who told him the
information came from his source, and Newton testified that he did not
know why, or even if, the CI was reliable at the time he drafted the affidavit.
See State v. Payne, 25 Ariz. App. 454, 457 (1976) (explaining that an officer’s
mere conclusions “do not provide the magistrate with any factual details
upon which to base the issuance of a search warrant”).

¶25            “Reasonable minds may frequently differ on the question [of]
whether a particular affidavit establishes probable cause,” Leon, 468 U.S. at
914, and we recognize the State is correct in that courts generally prefer to
enforce warrants and that “the resolution of doubtful or marginal cases in
this area should be determined by the preference to be accorded to
warrants,” United States v. Ventresca, 380 U.S. 102, 109 (1965). However, this
presumption does not apply when examining whether the redrafted
affidavit in a Franks hearing establishes probable cause; instead, “it is
appropriate to resolve marginal probable cause determinations in such a
manner as will best uphold the integrity of the fourth amendment.” Buccini,
167 Ariz. at 558. On this record, even if we consider Newton’s statement
that the CI was deemed reliable by the FBI, the superior court did not err
because the redrafted affidavit provides “virtually no basis at all for making
a judgment regarding probable cause.” Gates, 462 U.S. at 239. Accordingly,
each of the four warrants “must be voided and the fruits of the search
excluded to the same extent as if probable cause was lacking on the face of
the affidavit.” Franks, 438 U.S. at 156.

       C.     Good-Faith Exception

¶26            The State also argues that “[e]ven if a search warrant is later
found to be invalid, the fruits of the search must not be suppressed if the
officers executed the warrant in good faith,” citing A.R.S. § 13-3925 and
Leon, 468 U.S. 897 (1984). The good-faith exception does not apply when
there has been a Franks violation, as occurred here. See United States v.
Jacobs, 986 F.2d 1231, 1234–35 (8th Cir. 1993) (reversing a conviction after
finding Franks violation invalidated a warrant because “under Leon, a
Franks violation is not excused”); see also Leon, 468 U.S. at 922–23
(“Suppression . . . remains an appropriate remedy if the magistrate or judge
in issuing a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his
reckless disregard of the truth.” (citing Franks)); cf. United States v. Glover,
755 F.3d 811, 814 (7th Cir. 2014) (finding “the affidavit’s omission of all
information about the informant’s credibility is sufficient to raise an
inference of reckless disregard for the truth that could undermine the good
faith exception under Leon” and remanding for a Franks hearing).


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                       STATE v. BLACKWELL
                         Decision of the Court

                            CONCLUSION

¶27         We affirm the superior court’s order granting the motions to
suppress.




                     AMY M. WOOD • Clerk of the Court
                      FILED: AA




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