United States v. Garcia

809 F. Supp. 2d 1165 (2011)

UNITED STATES of America, Plaintiff,
v.
Antonio GARCIA, Defendant.

No. C 11-00172-1 SI.

United States District Court, N.D. California.

August 24, 2011.

Christine Wong, United States Attorney's Office, San Francisco, CA, for Plaintiff.

Lynn Marie Keslar, Law Offices of Lynn M. Keslar, Oakland, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS

SUSAN ILLSTON, District Judge.

On August 12, 2011, the Court heard argument on defendant's motion to suppress. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS IN PART and DENIES IN PART defendant's motion.

BACKGROUND

On January 23, 2009, defendant Antonio Garcia was detained and then arrested in San Francisco on Hyde Street between Ellis and Eddy for possession of cocaine in violation of California Health and Safety Code section 11350.^[1] On January 27, San Francisco Police Inspector Scott Lau submitted a statement of probable cause to the San Francisco Superior Court, in support of a request for a warrant to search defendant's house. See Statement of Probable Cause, Declaration of Lynn Keslar in Supp. of Mot. to Suppress ("Keslar Decl."), Ex. A.

In addition to describing his training and qualifications as an affiant, Inspector Lau described the events of January 23 as follows. He, along with Sergeant Brown, Inspector Yu, Sergeant Ries, and Sergeant Chorley,

conducted a surveillance in the area of Eddy St. and Hyde St. We know this area is frequented by "11th St." Sureno gang members. Insp. Yu is currently investigating a shooting involving an 11th St. gang member by the name of Dennis Hanrahan . . . who was shot on 1/21/09 in this area. . . . During our investigations at Gang Task Force, we have also had information in the recent past that 11th St. gang members have firearms, are selling narcotics, and are extorting local drug dealers.

Sgt. Ries observed a number of 11th St. gang members mid-block on the east side of Hyde St. between Ellis St. and Eddy St. They appeared to be loitering beside a green Buick . . . . that was double-parked in the # 1 lane of Hyde St. traffic blocking a private driveway. We contacted this group which included the following subjects: Antonio "Capone" Garcia [and five others]. We knew all these subjects from prior contacts with the exception of [one]. Antonio Garcia is a 19th St. Sureno gang member, [and the other four known subjects are 11th St. gang members]. Antonio Garcia advised Sgt. Chorley that the double-parked green Buick belonged to him. As we were speaking to these subjects, Sgt. Chorley looked into the green Buick from outside the vehicle through the driver's side window which had been rolled down; using his flashlight to illuminate the interior of the vehicle, Sgt. Chorley observed a small plastic baggy containing suspected cocaine. Sgt. Chorley advised us of his observation, and we arrested Garcia. Sgt. Chorley seized the baggy of suspected cocaine from the vehicle. When Garcia asked why he was being handcuffed, Insp. Yu told him that a bag of cocaine had been found in his vehicle. Garcia spontaneously stated, "Come on, man, it's a little personal." Garcia was clearly upset that he had been arrested for what he considered a small amount of drugs. The other subjects left the scene.

Garcia was transported to Co. J. Garcia's tattoos were photographed. We noted that he had the following Sureno gang-related tattoos: "13" and "calle ezinueve" on his back and on his left hand he had 3 dots. . . . The SFPD Crime Lab tested the suspected cocaine and found it tested positive for the presence of cocaine salt with a net weight of .42 grams.

Id. Inspector Lau also stated that he knows from his training and experience "that it is common for someone who consumes cocaine to possess paraphernalia for the ingestion of cocaine at his residence or in his vehicles" and "that it is common to find additional drugs and empty used packaging items at a drug user's residence or in his vehicles." Id.

On the basis of Inspector Lau's affidavit, a San Francisco Superior Court Judge signed a search warrant authorizing the seizure of:

1. Cocaine

2. Paraphernalia for the ingestion of cocaine, including but not limited to straws, rolled papers, smooth-surfaced items such as glass, etc., razor blades.

3. Narcotics packaging including but not limited to small ziplock bags, small pieces of plastic, pieces of paper.

[And] 4. Evidence of street gang membership or affiliation including documents, photos, drawings, writings, gang paraphernalia (e.g., bandanas, jackets, t-shirts), information stored on electronic devices, and graffiti depicting gang members' names, initials, logos, monikers, and/or slogans.

See Search Warrant, Keslar Decl., Ex. B.

The police searched Garcia's home later that evening. Among other things, they found a rifle, bullets, four bags of suspected marijuana, scales, and drug packaging. See Jan. 27 Incident Report, Keslar Decl., Ex. E, at 9. The police also found what they call "gang-related items," including blue bandanas. See id.

Defendant filed a motion to quash the search warrant in state court, which the San Francisco judge who had signed the search warrant denied after a hearing on October 23, 2009. See Transcript, Keslar Decl., Ex. D. At the hearing, defendant's attorney argued that under California law, neither possession of a user-amount of cocaine nor evidence of gang membership, without more, is sufficient to support a warrant to search a person's residence. The judge found that she "probably shouldn't have signed the warrant based on what's in the affidavit." Id. at 12:15-12:17.

There's a background in this case that there was a gang shooting the week before, and I think that quite honestly that context probably had me as the magistrate concerned at the time that I got the warrant. . . . But you're right, it's not set forth in the affidavit. . . . [Q]uite honestly, I think I was considering factors that I know of . . . that were not specifically set forth in the affidavit.

Id. at TR 3:19-3:20; 6:17-6:18; 9:14-9:17. Nonetheless, the judge found that the officers were acting in "good faith in seeking the warrant in the manner they did [and] in executing the warrant." Id. at TR 10:16-10:19.^[2]

Defendant is charged in federal court with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Indictment (Doc. 1). Currently before the Court is a motion to suppress, in which defendant requests the suppression of all evidence seized from defendant's home, car, and person, as well as all statements made by defendant and three individuals who were in his home when it was searched.

LEGAL STANDARD

The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. Evidence resulting from an unconstitutional search or seizure cannot be admitted as proof against the victim of the search, and therefore must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

"A search warrant, to be valid, must be supported by an affidavit establishing probable cause." United States v. Stanert, 762 F.2d 775, 778 (9th Cir.1985). "[P]robable cause means a fair probability that contraband or evidence is located in a particular place. Whether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a commonsense, practical question. Neither certainty nor a preponderance of the evidence is required." United States v. Kelley, 482 F.3d 1047, 1050-51 (9th Cir.2007) (internal quotation marks and citations omitted). In determining whether a search warrant was based upon probable cause, the district court is "limited to the information and circumstances contained within the four corners of the underlying affidavit." United States v. Stanert, 762 F.2d 775, 778, amended on other grounds, 769 F.2d 1410 (9th Cir.1985).

Review of a judge's determination that probable cause existed for a warrant is deferential; "the duty of a reviewing court is simply to ensure that the magistrate had a ``substantial basis for . . . conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39, 103 S. Ct. 2317; see also United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir.2007) ("Normally, we do not ``flyspeck' the affidavit supporting a search warrant through de novo review; rather, the magistrate judge's determination should be paid great deference." (internal quotation marks omitted)).

Where officers conducting a search reasonably relied on a warrant that later turned out to be invalid, there is a good faith exception to the exclusionary rule. See Massachusetts v. Sheppard, 468 U.S. 981, 987-88, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). In general, evidence will not be suppressed when the magistrate, not the officer, errs. United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993). However, information provided to the magistrate must be truthful "in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Franks v. Delaware, 438 U.S. 154, 165, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Evidence should be suppressed only if: (1) the magistrate has abandoned his detached and neutral role, (2) the officers were dishonest or reckless in preparing their affidavit, or (3) the officers could not have "harbored an objectively reasonable belief that probable cause existed." United States v. Leon, 468 U.S. 897, 926, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). It is the government's burden to demonstrate that the officers' reliance on an invalid warrant was reasonable. See Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 752 (9th Cir.1989).

DISCUSSION

I. Facial validity of the warrant

Defendant argues that the search warrant was facially invalid, because evidence that an individual uses drugs, by itself, does not yield probable cause to believe that drugs will be found in the person's home. Therefore, he argues that all fruits of the search of his home should be suppressed.

The Ninth Circuit has repeatedly affirmed searches of homes of suspected drug dealers even where there is no direct evidence linking the homes to illegal activity, because the presence of evidence in a drug dealer's home is a reasonable inference to draw. See, e.g., United States v. Fannin, 817 F.2d 1379, 1381-82 (9th Cir. 1987); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.1985). The government argues that this caselaw can and should be extended to drug users, especially since Inspector Lau stated in his affidavit that it is "common" for drug users to have additional drugs and paraphernalia at their residences.

Such an affidavit is available in every case. In effect, the government is looking for a bright-line rule that the police have probable cause to search the house of any person found with any amount of illegal drugs anywhere. This would be a significant extension of the case law, taking it beyond the bounds of what is permitted by the Fourth Amendment. The Ninth Circuit has held that "probable cause that a resident of the location has committed a crime is in itself insufficient to satisfy" the requirement that evidence probably will be found at the locations to be searched. See United States v. Fernandez, 388 F.3d 1199, 1254 (9th Cir.2004); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir.1995). Drug dealing and drug using are categorically different crimes. To extend the exception in Fannin and Angulo-Lopez is to eviscerate the rule stated in Fernandez and Gil. See United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970) (explaining that if mere probable cause to arrest a suspect also established probable cause to search the suspect's home, there would be no reason to distinguish search warrants from arrest warrants). The search warrant in this case was facially invalid.^[3]

II. Good Faith

The government argues that even if the search warrant was facially invalid, the good faith exception applies, and the evidence and statements should not be suppressed. Defendant argues that the exception does not apply because the officers should have known that they could not obtain a search warrant for defendant's home based on the evidence that he possessed a small amount of cocaine.^[4]

The exclusionary rule does not apply when the police conduct a search in "objectively reasonable reliance" on a warrant later held invalid. Leon, 468 U.S. at 922, 104 S. Ct. 3405. "[S]uppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." Id. at 926, 104 S. Ct. 3405. Courts apply "``the same standard of objective reasonableness . . . in the context of a suppression hearing'" and when determining whether "``qualified immunity [is to be] accorded an officer.'" See Groh v. Ramirez, 540 U.S. 551, 565 n. 8, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) (quoting Malley v. Briggs, 475 U.S. 335, 344, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)).

The Ninth Circuit has long held that there must be a reasonable nexus between the suspected criminal behavior, the items sought, and the location to be searched, in order for a warrant to be valid. See, e.g., United States v. Rodriguez, 869 F.2d 479, 484 (9th Cir.1989); see also United States v. Ramos, 923 F.2d 1346, 1351 (9th Cir. 1991) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S. Ct. 1970, 56 L.Ed.2d 525 (1978)), overruled on other grounds, United States v. Ruiz, 257 F.3d 1030 (9th Cir.2001) (en banc). The Circuit has carved out a single exception, for drug trafficking, based on concerns particular to that crime. There have been no indications in the case law that the exception would, could, or should be expanded.

The Court has discovered no case in the country that has upheld a search warrant on facts like those in this case. In fact, a number of cases from both federal and state courts, all applying federal constitutional law, have concluded that such warrants are invalid, including cases from two state appellate courts in this circuit. The earliest statement about the nexus problem as it relates to drug use and residential searches appears to be in a forty year old federal habeas case out of Texas, where the Fifth Circuit explained that the fact that a homeowner "had admitted that he was a narcotics user did not provide probable cause for believing that the narcotics were present in his house on the night of the search." State of Tex. v. Gonzales, 388 F.2d 145, 148 (5th Cir.1968). The sentiment expressed in the case has been extended and affirmed. At least one federal circuit court, three state supreme courts, and three appellate courts from other states have held that a search warrant for the residence of a person found in possession of a user-amount of illegal drugs is facially invalid if there are no specific facts connecting drugs to the person's home, and there does not appear to be any case law to the contrary. See United States v. McPhearson, 469 F.3d 518, 520-21 (6th Cir.2006); State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999) (applying test from Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)), overruled in part on other grounds, State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000); State v. Souto, 578 N.W.2d 744, 748-49 (Minn.1998) (same); State v. Doile, 244 Kan. 493, 769 P.2d 666 (1989) (same), overruled in part on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); Cunningham v. Commonwealth, 49 Va.App. 605, 643 S.E.2d 514, 516-17 (2007) (same); People v. Pressey, 102 Cal. App. 4th 1178, 1182, 126 Cal. Rptr. 2d 162 (2002) (same); State v. Stephens, 37 Wash. App. 76, 678 P.2d 832, 834 (1984) (applying other U.S. Supreme Court precedent).^[5]

Other federal and state courts have agreed in dicta. See, e.g., United States v. Hodge, 246 F.3d 301, 306 (3d Cir.2001) (explaining that while there was "no direct evidence that drugs or drug paraphernalia would be located at Hodge's home," the magistrate could have reached that conclusion indirectly, based on part on the fact that the "amount of crack cocaine Hodge possessed indicated he was ``involved in selling drugs, rather than merely using them'"); Ex parte Perry, 814 So. 2d 840, 843 (Ala.2001) ("[A] defendant's possession of illegal drugs does not, without more, make reasonable a search of the defendant's residence."). The State of Florida actually prohibits by statute the issuance of such search warrants. Fl. Stat. § 933.18(5) (proscribing the issuance of a warrant to search a dwelling for narcotics unless "[t]he law relating to narcotics or drug abuse is being violated therein.").

Of the courts to apply the Leon good faith test on similar facts, only one court—the 2002 decision in People v. Pressey—has found that the good faith exception applied. See Pressey, 102 Cal.App.4th at 1190-91, 126 Cal. Rptr. 2d 162 ("Given the dearth of authority directly on point and the existence of potentially supportive precedent [in the drug dealing cases], the issue of probable cause was ``debatable' when the warrant herein was sought, even though the issue, upon examination, is not a particularly close one." (emphasis added)). In contrast, the Sixth Circuit concluded in McPhearson that the affidavit was "so bare bones as to preclude application of the good-faith exception." 469 F.3d at 526. In that case, the search warrant had been issued on the basis of an affidavit that explained that the police suspected that they would find evidence of drug trafficking at the residence of a man arrested at the threshold of his house for simple assault with 6.4 grams of crack cocaine on his person. Id. at 521. Although there was no specific Sixth Circuit case law about searching the residences of those found in possession of user-amounts of drugs, there was general case law holding that the good faith exception does not apply if an affidavit does not contain a "``minimally sufficient nexus between the illegal activity and the place to be searched.'" Id. (quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc)).

Applying the Leon test in Doile, the Kansas Supreme Court similarly found that the good faith exception did not apply, because the affidavit did "not contain any factual allegations from which the judge could have found there was probable cause to believe contraband was in the residence." 769 P.2d at 673. In that case, the affidavit had explained that the appellant was arrested at his vehicle outside of a club, in possession of a partially burned marijuana cigarette, a mirror, a baggie of marijuana, and a straw in which white powder residue was discovered, and that defendant had been convicted of selling cocaine five years earlier. A prior Kansas case had held that "``[e]vidence of a single isolated drug sale may not give probable cause to believe drugs are present at a particular location.'" Id. at 672 (quoting State v. Morgan, 222 Kan. 149, 563 P.2d 1056 (1977)).

Most recently, in Cunningham, a Virginia appellate court suppressed evidence found at the appellant's residence, after applying Leon, because no reasonable police officer could have believed the warrant was valid based on the facts in the affidavit: "The law is clear on whether searching a person's residence based solely on suspected drug use unconnected to the residence is constitutionally permissible. Every case that we found nationwide addressing this issue held that such a search, based upon the arrest of a user of drugs, violates the Fourth Amendment." 643 S.E.2d at 522 (footnote omitted) (emphasis added). The affidavit had explained that the police attempted to stop the appellant's vehicle for a traffic offense. The appellant attempted to evade the police with his vehicle. The appellant then fled on foot. The appellant was arrested with marijuana and a plastic baggie corner with suspected cocaine residue on his person. In the appellant's car, the police found a razor blade, several empty plastic baggies consistent with drug packaging, various butane lighters, and several small brass screens that are commonly used in smoking devices. The affidavit also contained the opinion of an experienced officer, "that people that use marijuana often keep marijuana as well as devices used to ingest marijuana in their residences." A prior Virginia case had held that a "warrant lacked probable cause, in part, because the affidavit contained information about a single drug transaction, as opposed to repeated transactions or information that Anzualda was a known drug dealer." Id. (citing Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E.2d 749 (2005) (en banc)).^[6]

In Dougherty v. City of Covina, 654 F.3d 892, 2011 WL 3583404 (9th Cir.2011), the Ninth Circuit held that a police officer who executed a facially invalid search warrant was entitled to qualified immunity, because the law of the circuit was not clearly established, neither the circuit nor the U.S. Supreme Court had addressed the question, and because others circuit courts had split on similar questions. Id. at 899-900, at *5. Here, in contrast, Ninth Circuit law on the nexus requirement is clearly established. See Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) ("[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances."). Every court in the nation to address the specific question presented in this case has reached the same conclusion as this Court. As the California appellate court explained, "the issue, upon examination, is not a particularly close one." Pressey, 102 Cal.App.4th at 1190-91, 126 Cal.Rptr.2d 162. The government has not met its burden to demonstrate that the officers in this case could have harbored an objectively reasonable belief that probable cause existed. The good faith exception does not apply, and the fruits of the search should be suppressed.^[7]

III. The initial detention

Defendant argues that he was detained without reasonable and articulable suspicion that he was involved in criminal activity, and therefore all evidence in this case should be suppressed as the fruit of an unreasonable seizure. See United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000). The January 23 Incident Report indicates that defendant was detained by the police only after they found suspected cocaine in a car that they knew belonged to defendant. Defendant has not presented any evidence to the contrary. Evidence found and statements made before the search warrant was executed will not be suppressed.

CONCLUSION

For the foregoing reasons and for good cause shown, the Court hereby GRANTS IN PART and DENIES IN PART defendant's motion to suppress. It is hereby ORDERED that all items seized from defendant's residence be SUPPRESSED, as well as all statements made by persons present at defendant's home when it was searched.

IT IS SO ORDERED.

NOTES

[1] He was also charged with resisting, delaying or obstructing an officer in violation of California Penal Code section 148, apparently for attempting to prevent police officers from documenting gang tattoos after he had been transported to the police station. See Jan. 23 Incident Report, Declaration of Lynn Keslar in Supp. of Mot. to Suppress ("Keslar Decl."), Ex. C, at 7.

[2] While discussing the good faith exception, the judge mentioned the case People v. Pressey, 102 Cal. App. 4th 1178, 1182, 126 Cal. Rptr. 2d 162 (2002), in which a California appellate court held that a warrant to search a person's residence was facially invalid where it was based only on evidence that the person was found in possession of a controlled substance, and the expressed opinion of an experienced officer that drug users with controlled substances on their person or in their car are likely to have more of those substances where they live:

[T]hese officers were acting in good faith. There's no reason to believe they weren't acting in good faith. The only question for me is whether that good faith exception still applies.

The Pressey case seems to say it doesn't. This may be a situation where it does. Someone at a higher level than me will make that determination. So I'm going to deny the motion to quash for that reason.

[. . .]

[T]here's two elements to the good faith. . . . One is whether they had good faith in seeking the warrant in the manner they did. And second is good faith in executing the warrant.

I believe they acted in good faith in both. . . . [T]hey're not charged with knowing exactly what the nuances are of the law. Clearly there's four gang members standing there. They have a gang shooting, which was not in the affidavit—it was in the affidavit, but it's not tied into—

[. . .]

I don't know what they know is a crime or isn't a crime. I know these officers were involved in investigating the murder.

[. . .]

I think they—I believe the police officers in this case acted in good faith. Somebody might decide otherwise.

Transcript, Keslar Decl., Ex. D, at TR 9:21-9:28; 10:15-24; 11:9-11:11; 12:13-12:15.

[3] Although the affidavit contained evidence that defendant was a gang member, there was no connection between his alleged gang membership or evidence thereof and his alleged drug possession or evidence thereof. The government does not defend the validity of the search warrant on this ground. Additionally, although the government does not concede that the search warrant was overbroad to the extent that it sought evidence of gang membership, it has disclaimed any intent to introduce such evidence and therefore declined to brief the issue.

The affidavit also refers to a murder investigation. However, no connection is made between defendant and the murder investigation, and the search warrant was sought for evidence of drug possession, not evidence of involvement in a murder. At most, the police officers' involvement in a murder investigation provides context to explain why they were on Hyde Street. The government does not defend the validity of the search warrant on this ground either.

[4] The Court notes that the while the state court found that the good faith exception applied to the search in this case, she did not explain the legal or factual basis for her decision in any detail, and therefore the Court is essentially considering this question for the first time in this case.

To the extent that the state court judge's statement could have been understood to mean that the good faith exception will apply where a police officer obtains and executes a search warrant to look for evidence of drug use as a pretense for searching for evidence relating to a murder, without independent probable cause to believe that the individual whose house is to be searched is connected to the murder, and in fact without any facts connecting the person's drug use to the residence or the murder to the person, the Court disagrees with that reasoning. Additionally, to the extent that the state court judge's statement could have been understood to mean that a police officer is not tasked with knowing clearly established law in the jurisdiction, the Court disagrees with that reasoning as well.

[5] In McPhearson, the affidavit explained that the police suspected that they would find evidence of drug trafficking at the residence of a man arrested at the threshold of his house for simple assault with 6.4 grams of crack cocaine on his person. 469 F.3d at 521. In Johnson, the affidavit explained that the appellant was arrested for failure to pay child support, some amount of methamphetamine was found on his person incident to arrest, and he had a prior record for selling drugs at some point. It also contained the opinion of a police officer that drug users and drug dealers keep drugs at their residences. 589 N.W.2d at 112. In Souto, the affidavit indicated that the police had intercepted a package containing drugs addressed to the appellant at her former residence ten months earlier, that the package was never delivered, that a confidential informant told them that the appellant would use drugs at parties the informant threw at his own house, and that the appellant was in phone contact with a known drug dealer from her home. 578 N.W.2d at 745-46. In Doile, the affidavit explained that the appellant was arrested at his vehicle outside of a club, in possession of a partially burned marijuana cigarette, a mirror, a baggie of marijuana, and a straw in which white powder residue was discovered, and that he had been convicted of selling cocaine five years earlier. 769 P.2d at 671-72. In Cunningham, the affidavit explained that the police attempted to stop the appellant's vehicle for a traffic offense, the appellant attempted to evade the police in his vehicle and then fled on foot, the appellant was arrested with marijuana and a plastic baggie corner with suspected cocaine residue on his person, and the police found a razor blade, several empty plastic baggies consistent with drug packaging, various butane lighters, and several small brass screens that are commonly used in smoking devices in his car. It also contained the opinion of an experienced officer "that people that use marijuana often keep marijuana as well as devices used to ingest marijuana in their residences." 643 S.E.2d at 516-17. In Pressey, the affidavit explained that the appellant was arrested during a traffic stop for simple possession of a controlled substance, and it contained the opinion of an experienced officer that drug users with controlled substances on their person or in their car are likely to have more of those substances where they live. 102 Cal. App. 4th at 1181-82, 126 Cal. Rptr. 2d 162. In Stephens, a misstatement in the affidavit was excised pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and the remaining affidavit stated that appellant "had a small quantity of marijuana in his possession at the time of arrest." 678 P.2d at 834.

Compare the affidavit in this case, which provides information about suspected criminal activity of members of other gangs, states that defendant was found next to his double-parked car and that he had .42 grams of powder cocaine in his car, and explains that it is "common" for drug users to keep drugs in their homes.

[6] In Johnson, the Nebraska Supreme Court held that the good faith exception did not apply, because the affidavit omitted the detail that the "possession was of a small quantity not inconsistent with possession for personal use." 589 N.W.2d at 118. However, Nebraska has since changed how it applies the good faith exception. See Davidson, supra, 618 N.W.2d 418. In Stephens, the Washington Appellate Court did not reach the question of good faith because of the Franks violation. In Souto, the Minnesota Supreme Court did not reach good faith question because it had not been exhausted below. 578 N.W.2d at 751 n. 3.

[7] Defendant also requests a Franks evidentiary hearing, which the Court denies as moot.