USA v. Alexander

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JEROD ROBERT ALEXANDER,
Defendant.
Case No. 3:21-cr-00048-SLG-MMS
ORDER REGARDING MOTION TO SUPPRESS EVIDENCE
Before the Court at Docket 35 is defendant Jerod Robert Alexander’s Motion
to Suppress Evidence. The government filed a response in opposition at Docket
42. With leave of the Court, Mr. Alexander filed a reply at Docket 58.
Mr. Alexander seeks an order suppressing the items seized during execution
of a search warrant at an apartment on West 88th Avenue in Anchorage. Mr.
Alexander asserts that he is entitled to a Franks hearing because he has made a
substantial preliminary showing that the warrant application affiant intentionally or
recklessly made false or misleading material omissions in support of the warrant,
and he asserts that there was no probable cause for the warrant to issue.
I. Background
The warrant application was sworn by FBI Special Agent Sarah North.
Agent North’s application stated the following relevant facts in support of probable
cause: On March 26, 2021, a confidential informant (CI) told drug task force
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investigators that Mr. Alexander was a drug distributor, that the CI had “recently”
purchased drugs from Mr. Alexander, and that Mr. Alexander was always armed
and had a firearm in his apartment.1 The same day, at the direction of the
investigators, the CI arranged a controlled purchase of heroin from Mr. Alexander
at an apartment on East Potter Drive in Anchorage, which the CI identified as Mr.
Alexander’s apartment.2 The CI and an undercover agent went to the East Potter
Drive apartment, and the CI went inside and purchased heroin from Mr.
Alexander.3 The CI reported that Mr. Alexander’s girlfriend was present in the
apartment and assisted with the sale, and that Mr. Alexander had more heroin in
the apartment than what he had sold to the CI.4 Investigators obtained a search
warrant for the East Potter Drive apartment, but it was not executed because Mr.
Alexander had moved out of the apartment.5
On April 20, 2021, the CI told investigators that Mr. Alexander was at an
apartment at 3930 West 88th Avenue. Investigators began surveillance that same
day, and “at 8:45 p.m., they observed Alexander running east on 88th Avenue to
1 Docket 36-1 at 11, ¶ 10.
2 Docket 36-1 at 11, ¶ 11.
3 Docket 36-1 at 11–12, ¶¶ 12, 13.
4 Docket 36-1 at 12, ¶ 14.
5 Docket 36-1 at 12, ¶ 15.
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a parking lot at 3664 W. 88th Avenue.”6 They then saw a white SUV belonging to
Mr. Alexander’s girlfriend leave the parking lot and drive to the West 88th Avenue
apartment and drive into a garage located at the property.7 Investigators also
observed Mr. Alexander at the West 88th Avenue apartment the next evening.8
The warrant affidavit stated that Mr. Alexander was on felony parole for a
controlled substance crime and had a prior felony robbery conviction.9 The
affidavit stated that the CI had prior convictions for “failure to stop at the direction
of a peace officer, violation of conditions of release, theft, forgery, providing false
identifying information, driving on a revoked license, concealment of merchandise,
misconduct involving a controlled substance, reckless driving, and driving under
the influence.”10 The affidavit acknowledged that the CI “cooperated in the
investigation to mitigate his/her own potential criminal liability.”11
On April 22, 2021, a U.S. Magistrate Judge authorized a search of the West
88th Avenue apartment and any related vehicles near the apartment for evidence
of possession of a controlled substance with intent to distribute (21 U.S.C. §
6 Docket 36-1 at 12, ¶ 17.
7 Docket 36-1 at 12, ¶ 17.
8 Docket 36-1 at 13, ¶ 18.
9 Docket 36-1 at 13, ¶ 20.
10 Docket 36-1 at 13, ¶ 21.
11 Docket 36-1 at 13, ¶ 21.
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841(a)(1)), felon in possession of firearms (18 U.S.C. § 922(g)(1)), and possession
of firearms in furtherance of a drug trafficking offense (18 U.S.C. § 924(c)).
II. Mr. Alexander has standing to challenge the search warrant.
The government asserts that Mr. Alexander has not shown that he has
standing to challenge the search warrant because Mr. Alexander “points to no
specific facts establishing a reasonable expectation of privacy. Instead, he
minimizes the evidence that he resided at the target premises and implies that the
residence actually belonged to [his girlfriend.]”12
In his reply, Mr. Alexander asserts that he has standing to challenge the
search warrant because he “had access to the security code on the door of 3930
W. 88th Avenue, Apartment 1, could come and go as he pleased, could invite or
exclude guests, and left several personal items” there . . . he was an overnight
guest with a reasonable expectation of privacy in the target premises.”13 Based
on these representations, Mr. Alexander would have standing to challenge the
12 Docket 42 at 6.
13 Docket 58 at 3. The Court considers this information solely to determine whether Mr.
Alexander has standing. The Court does not consider this information in determining if probable
cause existed for the warrant to issue because this information was not presented to the
magistrate judge.
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warrant, because “an overnight guest has a legitimate expectation of privacy in his
host’s home.”14
III. A Franks hearing is not justified.
In Franks v. Delaware, the Supreme Court held that a search warrant is
invalid if the police obtain it by deliberately or recklessly presenting false, material
information to the issuing judge.15 An evidentiary hearing on the veracity of a
warrant affidavit, and ultimately on the constitutionality of the search, is required
when a defendant makes a substantial preliminary showing that: (1) “the affiant
officer intentionally or recklessly made false or misleading statements or omissions
in support of the warrant,” and (2) “the false or misleading statement or omission
was material, i.e., necessary to finding probable cause.”16
Mr. Alexander contends that the affidavit “fails to include that the informant
was on probation for state charges during the time he was cooperating with law
enforcement and that he had violated the conditions of his state probation at least
twice, both violations based on his dishonesty to his probation officer . . . both facts
which have critical bearing on [the CI’s] credibility.”17 The government responds
that “[n]o precedent requires the affidavit to include arrests that did not lead to
14 Minnesota v. Olson, 495 U.S. 91, 98 (1990).
15 438 U.S. 154 (1978).
16 United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017) (citation, alteration, and internal
quotation marks omitted).
17 Docket 35 at 4 (ellipsis in original).
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conviction, or probation violations” and that Mr. Alexander presented no evidence
that the CI violated his/her probation by cooperating with law enforcement.18
Mr. Alexander has not made a substantial showing that Agent North
intentionally or recklessly made false or misleading omissions or that those
omissions were material. While Agent North could have included additional
information regarding the CI’s criminal history and probation violations and status,
she alerted the magistrate judge to potential credibility issues by specifying that
the CI had prior convictions for certain crimes that involved dishonesty and that the
CI had cooperated to gain a personal benefit. It does not appear that Agent North
acted to falsely bolster the CI’s credibility. Indeed, the fact that Agent North failed
to include information that investigators had seen multiple vehicles make short
visits to the West 88th Avenue apartment19—a fact that would have strongly
supported probable cause that the apartment contained drugs and was being used
as a sale location—suggests that Agent’s North’s omissions may have been at
most negligent but were not intentional or in reckless disregard of the truth.
IV. The warrant application provided probable cause.
The Fourth Amendment provides that a magistrate judge may not issue a
search warrant without probable cause, “supported by Oath or affirmation.”20
18 Docket 42 at 8–9.
19 Docket 42 at 4.
20 U.S. Cont. Amend. IV.
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Probable cause exists when there is “a fair probability that contraband or evidence
is located in a particular place. Whether there is a fair probability depends upon
the totality of the circumstances, including reasonable inferences, and is a
commonsense, practical question. Neither certainty nor a preponderance of the
evidence is required.”21 When assessing whether probable cause exists to issue
a search warrant, all information necessary to establish probable cause “must be
contained within the four corners of a written affidavit given under oath.”22
This Court gives “great deference” to the issuing magistrate judge’s finding
that probable cause existed to support the search warrant.23 “The duty of a
reviewing court is simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed.”24
A. The affidavit provided probable cause that Mr. Alexander was
associated with the West 88th Avenue apartment.
Mr. Alexander first maintains that Agent’s North’s affidavit “is devoid of any
details or concrete facts evidencing that Mr. Alexander owned, rented, resided in,
or had control over” the West 88th Avenue apartment.25 Mr. Alexander asserts
21 United States v. Kelley, 482 F.3d 1047, 1050–51 (9th Cir. 2007) (internal quotation marks and
citations omitted).
22 United States v. Gourde, 440 F.3d 1065, 1067 (9th Cir. 2006) (en banc) (internal quotation
marks and citation omitted).
23 United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011).
24 Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (cleaned up) (internal citation omitted).
25 Docket 35 at 4; accord Docket 35 at 13–16.
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that the affidavit shows no nexus between the West 88th Avenue apartment and
the evidence sought and that “[s]uch a nexus could only be established if evidence
was presented that Mr. Alexander owned, rented, resided in, or controlled” the
West 88th Avenue apartment.26 The government responds that it is reasonable to
conclude that the West 88th Avenue apartment was Mr. Alexander’s residence
based on information from the CI and surveillance by investigators.27
The warrant affidavit contained information that the CI had seen Mr.
Alexander at the West 88th Avenue apartment on the evening of April 20, 2021.
That same evening, law enforcement investigators observed Mr. Alexander
running on West 88th Avenue to a parking lot 0.2 miles from the apartment.
Investigators then saw a white SUV belonging to Mr. Alexander’s girlfriend leave
the parking lot and drive to the West 88th Avenue apartment and go into the
apartment’s garage. The conclusion that Mr. Alexander was returning to the
apartment that evening in the SUV is reinforced by the warrant affidavit’s inclusion
of information stating that investigators observed Mr. Alexander at the apartment
again the following evening, April 21, 2021.28
Applying the “common sense” standard of probable cause, it was
reasonable for the magistrate judge to infer that Mr. Alexander resided at the West
26 Docket 35 at 13.
27 Docket 42 at 12.
28 See Docket 36-1 at 12–13.
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88th Avenue apartment, or at least that he had a sufficient connection to the
apartment to have stored drugs there. The affidavit stated that Mr. Alexander had
moved out of his last known address, and there was no information that Mr.
Alexander lived anywhere other than the West 88th Avenue apartment; the CI
stated that Mr. Alexander had moved to the West 88th Avenue apartment; the CI
and agents directly observed Mr. Alexander at the apartment on two consecutive
evenings; and agents observed a car belonging to Mr. Alexander’s girlfriend—who
had participated in an earlier drug sale with Mr. Alexander—enter the garage of
the apartment.29
B. The affidavit provided probable cause that evidence of the crimes
was likely to be found at the West 88th Avenue apartment.
Mr. Alexander also asserts that the affidavit contained no information “that
Mr. Alexander was selling drugs from or possessed firearms at” the West 88th
Avenue apartment; no controlled buys had been made at that location; and the
information about the drugs and guns at the East Potter Drive apartment was stale
because it was from a month prior to the warrant application.30 The government
responds that, “[e]ven without definitive proof that the residence belonged to
29 Cf. United States v. Howard, 447 F.3d 1257, 1265–66 (9th Cir. 2006), overruled on other
grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012) (observing that certain patterns
emerge in cases concluding that probable cause exists to believe a probationer resides at a
particular address: the probationer did not appear to be residing at any address other than the
one searched; officers directly observed behavior that gave officers good reason to suspect the
probationer lived at the residence; and the probationer possessed and/or used a key to the
residence).
30 Docket 35 at 5; accord Docket 35 at 13.
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Alexander, [his girlfriend’s] presence at the arranged buy, observations of her car
pulling into the target residence, and Alexander’s presence at the target residence
likewise provided probable cause to believe evidence of drug trafficking would be
found there.”31 Mr. Alexander replies that the CI “did not state that any drugs or
guns were present at the target premises or that Mr. Alexander sold drugs from
the target premises.”32
“Direct evidence that contraband or evidence is at a particular location is not
essential to establish probable cause to search the location.”33 A magistrate judge
“is entitled to draw reasonable inferences about where evidence is likely to be kept,
based on the nature of the evidence and the type of offense.”34 A magistrate judge
“need not determine that the evidence sought is in fact on the premises to be
searched . . . or that the evidence is more likely than not to be found where the
search takes place. . . . The magistrate need only conclude that it would be
reasonable to seek the evidence in the place indicated in the affidavit.”35 The Ninth
Circuit has repeatedly held that a magistrate judge can draw the reasonable
31 Docket 42 at 12.
32 Docket 58 at 6.
33 United States v. Angulo–Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986).
34 Id.
35 United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985) (citations omitted).
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inference that “[i]n the case of drug dealers, evidence is likely to be found where
the dealers live.”36
Here, the information within the warrant affidavit was sufficient for the
magistrate judge to make a reasonable inference that evidence of drugs and
firearms would likely be found at the West 88th Avenue apartment. Only a month
before, agents had conducted a heroin buy from Mr. Alexander and his girlfriend
at his then-residence, during which Mr. Alexander sold some, but not all, of the
heroin he had at the residence to the CI. The affidavit contained information that
Mr. Alexander was constantly armed and kept a firearm at his residence. As
discussed above, it was reasonable to conclude that Mr. Alexander had moved to
the West 88th Avenue apartment. Agents had observed a car belonging to Mr.
Alexander’s girlfriend—who had participated in the heroin sale with Mr.
Alexander—enter the garage of the apartment. Finally, Agent North’s affidavit
described her knowledge that drug dealers typically keep evidence of their dealing
in their residences and vehicles.37
C. The affidavit included evidence that bolstered the CI’s credibility.
In his reply, Mr. Alexander contends—separate from whether omissions in
the warrant affidavit necessitate a Franks hearing—that the warrant application
36 United States v. Ayers, 924 F.2d 1468, 1479 (9th Cir. 1991); see also United States v.
Fernandez, 388 F.3d 1199, 1254 (9th Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005);
Angulo-Lopez, 791 F.2d at 1399; United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987);
United States v. Foster, 711 F.2d 871, 878 (9th Cir. 1983).
37 Docket 36-1 at 5–11. See United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987) (“[I]n
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lacks probable cause because the information obtained from the CI is not
credible.38 Specifically, Mr. Alexander maintains that because the affidavit
contains “no evidence . . . to repair or rehabilitate the criminal informant’s credibility
or reliability of the tip within the four corners of the application for the search
warrant, such as prior successful work with law enforcement, the search warrant
cannot stand.”39
However, the warrant affidavit does include evidence that bolsters the CI’s
credibility and the reliability of the tips. The CI first told agents that Mr. Alexander
was a dealer; this was borne out by the CI’s subsequent controlled buy of heroin
from Mr. Alexander while the CI was accompanied to the residence by an
undercover agent. The CI later informed agents that Mr. Alexander had moved to
the West 88th Avenue apartment; this was borne out by observations of Mr.
Alexander at that apartment and likely parking in the garage of the apartment on
two consecutive days. Particularly in light of this corroboration, the absence of
weighing the evidence supporting a request for a search warrant, a magistrate may rely on the
conclusions of experienced law enforcement officers regarding where evidence of a crime is
likely to be found.”).
38 Docket 58 at 4.
39 Docket 58 at 4.
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prior successful cooperation with law enforcement does not render the CI’s
information uncredible.
Mr. Alexander cites to United States v. Hall for the premise that the Court
should not consider information gathered from the CI when assessing probable
cause because “[i]f an informant’s history of criminal acts involving dishonesty
renders his statement unworthy of belief, probable cause must be analyzed without
those statements.”40 Mr. Alexander maintains that the CI’s “pattern of lying to law
enforcement in his recent past calls the reliability of the information [CI] relayed
through SA North, which law enforcement in turn relied up on to support the search
warrant, into question.”41 The government responds that in Hall, the omission from
a warrant affidavit of the confidential informant’s conviction for falsely reporting a
crime was “what most impeached [the informant’s] credibility,” not the informant’s
probation violation involving threating a police officer.42
Hall is distinguishable from the present case in three ways. First, the
informant in Hall was the only source of crucial information that supported the
warrant. Here, investigators participated in buying heroin from Mr. Alexander and
also observed him at or near the apartment on two different days. Second, the
40 Docket 35 at 11 (citing Hall, 113 F.3d 157, 158 (9th Cir. 1997)); see also Docket 58 at 4 (citing
Hall, 113 F.3d at 158).
41 Docket 35 at 12.
42 Docket 42 at 8 (quoting Hall, 113 F.3d at 160).
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only information from the informant in Hall that could be corroborated consisted of
“innocent facts,” such as where someone lived and what car they drove. The Ninth
Circuit noted that “innocent details” do not do much “to corroborate a tip from a
man known to have made a false report to police.”43 Here, investigators were able
to corroborate the CI’s information regarding Mr. Alexander being a drug dealer by
arranging a buy of heroin from Mr. Alexander. Third, in Hall the information that
was not disclosed to the magistrate judge was about the information’s prior criminal
convictions involving dishonesty. Here, the information that was not disclosed
related to the CI’s prior arrests, probation status, and an unsupported claim of a
probation violation that involved dishonesty. Although “[a]ny crime involving
dishonesty necessarily has an adverse effect on an informant’s credibility,” a
criminal history involving dishonesty is only fatal to an informant’s credibility when
there is no other “countervailing evidence to bolster the informant’s credibility or
43 Hall, 113 F.3d at 159.
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the reliability of the tip.”44 As discussed above, the warrant affidavit included
evidence that bolstered the CI’s credibility and the reliability of the tips.
This Court finds that, under the totality of the circumstances, the magistrate
judge had a substantial basis for concluding that probable cause existed for the
issuance of the search warrant for the West 88th Avenue apartment.
CONCLUSION
In light of the foregoing, IT IS ORDERED that the motion at Docket 35 is
DENIED.
DATED this 11th day of March, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
44 United States v. Reeves, 210 F.3d 1041, 1045 (9th Cir. 2000) (distinguishing Hall because of
the presence in Reeves of “countervailing evidence which diminishe[d] the adverse effect of the
[informant’s] prior criminal history”).
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