United States of America v. Ivan Avalos Espinoza

United States Court of Appeals
For the Eighth Circuit
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No. 23-1329
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Ivan Avalos Espinoza
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 21, 2023
Filed: November 30, 2023
[Unpublished]
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Before COLLOTON, SHEPHERD, and KOBES, Circuit Judges.
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PER CURIAM.

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Following his guilty plea to a drug offense, Ivan Avalos Espinoza (Avalos)
appeals the district court’s1 denial of his motions challenging the search of two cell
phones.
Upon careful review, we conclude that the district court did not abuse its
discretion by denying Avalos’s request for a hearing pursuant to Franks v. Delaware,
438 U.S. 154 (1978), as he failed to show that information necessary to the finding
of probable cause had been intentionally or recklessly omitted from the warrant
application. See United States v. Short, 2 F.4th 1076, 1077, 1080 (8th Cir. 2021)
(denial of Franks hearing is reviewed for abuse of discretion; to merit a hearing,
defendant must make a substantial preliminary showing that the warrant affiant
deliberately or recklessly omitted information necessary to the finding of probable
cause).
We also conclude that the district court did not err in denying Avalos’s motion
to suppress, as there was a fair probability that evidence of drug trafficking would be
found on the phones. See United States v. Holly, 983 F.3d 361, 363 (8th Cir. 2020)
(in reviewing denial of a motion to suppress, district court’s legal conclusions are
reviewed de novo); see also United States v. James, 52 F.4th 1035, 1038 (8th Cir.
2022) (probable cause to support search is present when there is fair probability that
evidence of crime will be found in particular place); United States v. Eggerson, 999
F.3d 1121, 1127 (8th Cir. 2021) (it was reasonable to infer that cell phones found at
a location associated with drug trafficking and on the person of an individual
associated with drug trafficking had a fair probability of containing evidence of the
crime).
1The Honorable Brian C. Buescher, United States District Judge for the District
of Nebraska, adopting the report and recommendations of the Honorable Michael D.
Nelson, United States Magistrate Judge for the District of Nebraska.
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Accordingly, we affirm.
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