USA v. Griffien

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff,
vs.
Taron Dejuan Griffien,
Defendant.
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Case No. 3:23-cr-226
REPORT AND RECOMMENDATION
An indictment charges Taron Dejuan Griffien with possession of firearms by a
prohibited person, possession with intent to distribute a controlled substance, and
distribution of a controlled substance. (Doc. 1). He moves for (1) a hearing under Franks
v. Delaware, 438 U.S. 154 (1978), asserting an application for a tracking warrant omitted
critical facts that should have been included; (2) suppression of all evidence obtained
through the tracking warrant; and (3) dismissal of the indictment. (Doc. 76).
Griffien argues Cass County, North Dakota, Drug Task Force Officer (TFO) Adam
Gossen, in his declaration in support of a tracking warrant application, omitted facts
that undermine the credibility of a confidential informant (CI) who had provided
information to task force officers and who had participated in an alleged controlled
purchase of fentanyl pills from Griffien. Griffien contends that if TFO Gossen had
included the omitted facts in his declaration, probable cause would not have supported
issuance of the tracking warrant. Id.
The United States opposes the motion, contending the omissions were not
reckless or intended to mislead the state court judge who issued the tracking warrant,
probable cause would have supported issuance of the tracking warrant even if the
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omitted information had been included, and a Franks hearing is therefore not required.
(Doc. 80). The United States alternatively argues that even if the tracking warrant was
deficient, probable cause supported a traffic stop of a vehicle Griffien was driving and
the subsequent search of that vehicle. Further, the United States contends if the tracking
warrant was not supported by probable cause, the good-faith exception, the
independent source doctrine, and the attenuation doctrine all preclude suppression of
the evidence. Id.
The court held a hearing on June 4, 2025. 1 In addition to their initial
memoranda, (Doc. 76, Doc. 80), the parties filed post-hearing memoranda, (Doc. 87;
Doc. 92).
Summary of Recommendation
During the June 4 evidentiary hearing, at which TFO Gossen testified and
Griffien had a full opportunity to cross-examine him. Because the parties presented
their evidence at the June 4 hearing and neither party suggests any additional
information would be elicited at a second evidentiary hearing, this court recommends
the district judge find the motion for a Franks hearing moot.
1 Defense counsel, via email, requested an evidentiary hearing during which
testimony would be presented. The United States responded that while it opposed a
Franks hearing, it did not oppose the court holding an evidentiary hearing.
“The Court has discretion when deciding whether to hold an evidentiary hearing
on a motion to suppress.” United States v. Bryant, No. 4:18-cr-00054-02, 2021 WL
2533456, at *4 (E.D. Ark. June 21, 2021) (citing United States v. Hardison, 859 F.3d
585, 589 (8th Cir. 2017)). Indeed, courts have held hearings before addressing
defendants’ entitlement to Franks hearings. See, e.g., United States v. Randle, 39 F.4th
533, 538 (8th Cir. 2022); United States v. McGraw-Williams, No. 23-cr-66, 2024 WL
4647987, at *4 (D. Minn. Nov. 1, 2024). However, as will be further discussed, this court
in effect held a full Franks hearing on June 4.
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Concerning the alleged Franks violation, in this court’s opinion, Griffien has
shown TFO Gossen omitted facts from a declaration in reckless disregard of whether the
omitted facts made his declaration misleading. But if TFO Gossen had included the
omitted information in his declaration, the reviewing judge may still have found
probable cause supported issuance of the warrant. For that reason, this court
recommends the district judge deny Griffien’s motion to suppress and his motion to
dismiss.
If, however, the district judge concludes a Franks violation occurred, the
government asserts three exceptions to suppression: (1) good faith, (2) the independent
source doctrine, and (3) the attenuation doctrine. In this court’s opinion, none of the
three exceptions would apply for reasons further discussed below. If the district judge
concludes a Franks violation occurred, the court recommends the district judge grant
Griffien’s motion to suppress evidence of fentanyl pills seized from his vehicle. But
because the government has not had an opportunity to address whether any exception
to the exclusionary rule would apply to evidence seized from a storage unit, if the district
judge concludes a Franks violation occurred, this court recommends the district judge
permit additional briefing on that issue.
Summary of Record Evidence
TFO Gossen was the sole hearing witness. The parties stipulated to admission of
various exhibits: (1) a copy of a police report regarding Confidential Informant 1 (CI-1),
(2) copies of text messages between TFO Gossen and CI-1, (3) a copy of a Confidential
Informant Agreement signed by CI-1, (4) a copy of North Dakota Attorney General’s
Office training materials on development of informants, (5) a copy of North Dakota
Bureau of Criminal Investigation (NDBCI) training materials on CI processing, (6) a
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copy of an audio recording from a device provided to CI-1 before the planned controlled
purchase at issue in this motion, 2 and (7) copies of five search warrants issued by state
court judges. (Doc. 80-2 to -5; Doc. 82-1 to -6).
TFO Gossen is employed by the Fargo, North Dakota, Police Department (FPD).
In May 2023, at the time of the events at issue, he was assigned to the Cass County Drug
Task Force (CCDTF), he was a certified drug recognition expert, he was a training officer
with the FPD, and he had completed training in use of confidential informants. (Tr. 16-
18). He described himself as being “pretty new to the task force” in May 2023. (Tr. 59).
TFO Gossen testified he had received training in use of CIs through the NDBCI,
including training in using CIs to make controlled drug purchases. (Tr. 48-49). He
described a “confidential informant packet” and paperwork a prospective CI is required
to complete and sign, advising of risks associated with being a CI, advising no promises
are made about charges against the potential CI, and advising a court appearance may
be required of the CI. TFO Gossen further described law enforcement officers meeting
with a CI prior to a planned controlled purchase. Those meetings are to include
searching the CI and their vehicle to confirm they have no contraband or currency in
addition to that provided for the planned purchase on their person or in their vehicle,
walking the CI through the planned controlled purchase, and asking for any information
the CI has not yet provided to law enforcement about the planned controlled purchase.
There is to be a prearranged neutral location for a meeting between the CI and a law
enforcement officer immediately after the controlled purchase. Law enforcement
2 The audio recording is hereafter referred to as Ex. 6. Because of background
noise, the audio recording did not capture any conversation about the alleged controlled
purchase or any other relevant evidence.
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officers provide the CI a recording device and task force “buy fund money.” Buy fund
money is currency, provided to the task force from the NDBCI, to be used for controlled
purchases of narcotics. As TFO Gossen described, before buy fund currency is provided
to a CI, law enforcement officers make a record of the currency’s serial numbers and the
CI signs for receipt of the currency. (Tr. 21-22, 28, 50).
The evidence involves two confidential informants: CI-1, who is alleged to have
purchased fentanyl pills from Griffien, and CI-2, who is alleged to have purchased
fentanyl pills from CI-1 prior to the alleged controlled purchase at issue here.
1. 	Controlled purchases by CI-2
TFO Gossen testified CI-2 made two controlled purchases of M30 fentanyl pills
from CI-1. On April 24, 2023, at a gas station at 734 University Drive North, Fargo, CI-2,
having been provided $200 in buy fund money, purchased approximately 44 M30
fentanyl pills from CI-1 (who was not yet working as a CI). (Tr. 20, 22; Doc. 82-1, pp. 9-
10). On May 3, 2023, at the same gas station, CI-2 purchased 50 M30 fentanyl pills from
CI-1 (who was still not working as a CI), using $400 in buy fund money. (Tr. 23-24; Doc.
82-1, pp. 13-14). TFO Gossen testified he followed established procedures in developing
CI-2 and in conducting the controlled purchases CI-2 made from CI-1. (Tr. 46-48).
2. 	Search of CI-1’s Residence
Based on the two controlled purchases, and still preceding CI-1 becoming a CI,
law enforcement officers obtained a state court search warrant for CI-1’s apartment
residence. TFO Gossen was one of the officers involved in executing the search warrant
at CI-1’s residence on May 10, 2023. He testified officers entered the residence using a
key provided by management of the apartment building after there was no answer at the
door. When officers entered, CI-1 was the only individual in the apartment. TFO Gossen
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had a conversation with CI-1, during which CI-1 denied there would be drugs in his
residence but acknowledged he was a fentanyl addict and used at least two fentanyl pills
a week. (Tr. 53). Pursuant to the search warrant, officers seized marijuana, two M30
fentanyl pills, one fentanyl pill in tinfoil, $3,094 in currency, and an iPhone. (Tr. 24-25;
Doc. 82-1, pp. 1-5). CI-1 was not arrested on the day of the search. (Doc. 82-1, p. 6).
TFO Gossen asked CI-1 if he was interested in working as a CI, and CI-1 agreed to
do that in exchange for possible favorable treatment regarding the two controlled
purchases and the items found in searching his residence. (Tr. 25-26). TFO Gossen
communicated with CI-1 via text messages within days of the residential search. On May
11, 2023, TFO Gossen met with CI-1 at his apartment building and returned CI-1’s
iPhone to him. (Tr. 55-56). In the days that followed the residential search, CI-1 and
TFO Gossen exchanged various text messages concerning potential controlled substance
purchases. (Doc. 82-2).
3. 	May 15, 2023 Planned Controlled Purchase
On May 15, 2023, TFO Gossen and CI-1 exchanged text messages, describing a
purchase of twenty pills for $200 that CI-1 could make, with TFO Gossen explaining the
need for CI-1 to complete the necessary paperwork before a controlled purchase. Id. at
7-8. CI-1 began work as a CI the same day he completed the paperwork necessary to
formally become a CI. (Tr. 28-29). TFO Gossen testified CI-1 had contacted him, stating
they were aware of a person they knew as “James,” whose nicknames were “Chicago” or
“Chi-Town,” and who traveled to the Chicago, Illinois, area about once a week to pick up
large quantities of M30 fentanyl pills and brought the pills to the Fargo area for sale.
(Tr. 57). CI-1 told TFO Gossen he could arrange a controlled purchase of approximately
twenty M30 fentanyl pills from “James,” and TFO Gossen advised CI-1 they would meet
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to complete the CI paperwork. (Tr. 29, 57). CI-1 signed a Confidential Informant
Agreement on May 15 at 1:20 p.m., just before the planned controlled purchase
operation began. (Doc. 82-3, p. 5; Tr. 59).
According to TFO Gossen’s testimony, after CI-1 completed the necessary
paperwork, CI-1 contacted “James” to arrange to purchase “approximately 20” M30 pills
from “James” at a Family Fare grocery near CI-1’s Fargo residence the afternoon of May
15. TFO Gossen and another task force officer searched CI-1, found no contraband,
illegal narcotics, paraphernalia, or additional currency on his person, and released CI-1
to go to the location where he was to meet “James.” Officers provided CI-1 with $200 in
buy fund money and an audio recording device. (Tr. 34, 58). TFO Gossen instructed CI-1
to return to the original meet location—the Family Fare—after he completed the
controlled purchase. (Tr. 36, 52, 60).
TFO Gossen testified there were seven task force officers—two of whom were in
uniforms and vests—in five unmarked vehicles stationed throughout the area of the
planned controlled purchase, with a goal of at least one officer keeping eyes on CI-1
throughout the controlled purchase. (Tr. 31-32). TFO Gossen communicated with CI-1
via text messages, and perhaps also via cell phone calls, during the operation. TFO
Gossen testified that, after CI-1 was released to make the controlled purchase, CI-1
walked around the area for several minutes, waiting for the suspect to arrive. He
testified they “were able to have visual on [CI-1] the entire time” though CI-1 walked into
the Family Fare one time but came back outside after TFO Gossen directed him to do so.
(Tr. 32, 34-35; Doc. 82-2, pp. 9-10).
Law enforcement officers saw a vehicle pull up outside the Family Fare and saw
CI-1 enter the passenger side of the vehicle. Officers followed the vehicle as it drove
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“approximately one block around the radius of the location.” (Tr. 33). After the suspect
vehicle drove around the block, officers saw the vehicle pull into the parking lot of CI-1’s
apartment building, which is across the street from the Family Fare, saw CI-1 exit the
vehicle’s front passenger seat and walk towards the apartment building, and saw the
suspect vehicle leave the area. TFO Gossen acknowledged, because of very loud music in
the vehicle, the audio from the recording device CI-1 was given contains nothing
indicating a controlled purchase actually occurred. (Tr. 63, 87). The court reviewed the
recording and was unable to identify any conversation concerning the planned
controlled purchase.
After seeing CI-1 exit the vehicle, officers saw CI-1 walk into his apartment
building and go down a stairway. (Tr. 33, 35). After surveillance units radioed to advise
him that CI-1 had entered his apartment building, TFO Gossen drove from “the other
side of the Family Fare” to the apartment building, drove by the front door of the
apartment building, and “was able to see CI[-]1 in the stairwell as [he] drove by and then
parked.” (Tr. 43). He contacted CI-1 and directed him to come outside to TFO Gossen’s
vehicle in the apartment building parking lot. CI-1 asked if the suspect vehicle had left
the area, and CI-1 came to TFO Gossen’s vehicle after surveillance units advised TFO
Gossen the suspect vehicle had left the area. 3 (Tr. 44).
4. 	CI-1’s Time in Apartment Building
TFO Gossen testified CI-1 was inside his apartment building for approximately
two minutes and thirty seconds and TFO Gossen saw CI-1 in the building “for a brief
second” when he drove by the apartment building. CI-1 was going down a staircase
3 TFO Gossen did not testify he relayed to CI-1 that the suspect vehicle had left
the area, but this court presumes he did so.
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consisting of five or six steps, and TFI Gossen was “able to see the CI’s head at the
bottom of the staircase looking out towards the parking lot.” (Tr. 94, 97, 99). He testified
CI-1’s apartment was in the garden-level of the building. (Tr. 99). The only other law
enforcement officer in the area at the time CI-1 was in the apartment building was in the
same vehicle as TFO Gossen, and that vehicle was facing away from the building as it
pulled in to park. (Tr. 95).
During the time CI-1 was in his apartment building, the audio recording includes
the sounds of “multiple doors being opened” and of conversation between CI-1 and a
female.4 (Tr. 35, 65; Ex. 6, 44:00-47:30). Based on the multiple sounds of a squeaking
door—which TFO Gossen opined was same door every time—he concluded the audio
recording was consistent with CI-1 5 standing by the front door and individuals entering
through the hallway, but on cross-examination, he agreed that was “pure speculation.”
(Tr. 93-94, 98). TFO Gossen acknowledged no officer saw other individuals enter or exit
the building’s front door while CI-1 was inside the building. (Tr. 95). On cross-
examination, TFO Gossen acknowledged it was possible the sounds on the recording
indicated CI-1 was in his apartment having a conversation with the female with whom
he lived. (Tr. 67).
CI-1 told TFO Gossen it was “their norm to – after purchasing narcotics from this
individual to then go straight back into their apartment building and believed that it
4 The substance of any conversation between CI-1 and the female cannot be
discerned from the recording.
5 The prosecutor’s question referred to “the Defendant” standing by the front
door, (Tr. 94), but the court assumes the prosecutor intended to refer to CI-1 rather than
to the defendant, since there is no evidence suggesting Griffien was inside CI-1’s
apartment building on May 15.
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would look weird or suspicious if they stood around outside or went to a different
location.” (Tr. 36). TFO Gossen testified CI-1 told him he had waited in the hallway until
TFO Gossen contacted him and had not entered any apartments. (Tr. 36). CI-1 provided
nineteen M30 fentanyl pills—not twenty as had been planned—to TFO Gossen, and TFO
Gossen found no other contraband or currency when he searched CI-1. (Tr. 37).
5. 	Surveillance of Suspect Vehicle
Other law enforcement agents followed the vehicle CI-1 had entered at the Family
Fare to the Rodeway Inn in the area of University Drive South and Interstate-94 in
Fargo. Law enforcement officers recorded the North Dakota license plate number of the
suspect vehicle, a 2012 Chrysler 200, as 066EAH. TFO Gossen went to the Rodeway Inn
later the same day, reviewed the rental roster, and reviewed video covering the
approximate timeline of interest. TFO Gossen testified the video showed the suspect
vehicle pull through the parking lot, with a single individual exiting the driver’s door
and entering the Rodeway Inn. He testified video and still photographs from inside a
Rodeway Inn hallway showed the face of the individual who had exited the suspect
vehicle. Rodeway Inn staff identified that individual as Griffien based on a photocopy of
Griffien’s driver’s license which the Rodeway Inn required for an individual to rent a
room. TFO Gossen saw the photocopy of the driver’s license, which bore Griffien’s
name. He testified the driver’s license photograph “was indicative of” the individual seen
in the Rodeway Inn video. (Tr. 39-40).
6. 	Communications Between CI-1 and TFO Gossen After the Alleged
Controlled Purchase
Sometime after TFO Gossen searched CI-1, he communicated with CI-1 about
there being only nineteen—not twenty—M30 fentanyl pills:
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TFO Gossen: Short 1
CI-1: 	he owe us one tomorrow he told me just let him know
TFO Gossen: Alright I’ll let you know tomorrow
CI-1: 	Wat time u thinkin ?
TFO Gossen: Not sure yet
CI-1: 	Ok I’ll be up at 7 to drop my babies off so right after would b
good that’s when he usually come through
TFO Gossen: Alright I’ll let you know
See if you can get this guys Facebook or something
CI-1: 	Ok
Ik that was probably ugly as fuck bro but I never did no shit
like this so the do’s n dont’s I was just oblivious to, when both
my phone and yours were dead i thought to just walk back but
I didn’t know if u guys moved or not. N he was kinda leery
watchin. I seen him pull from the next street over like he was
watchin b4 he pulled up. I just had to pop my cherry. But I can
handle this.
(Doc. 82-2, pp. 10-12). TFO Gossen testified it was common to get a different number of
pills than had been agreed upon in a controlled purchase. (Tr. 90). As to CI-1’s
statement that “both my phone and yours were dead,” TFO Gossen testified there had
been no problem with his phone communications with CI-1 during the May 15
operation. (Tr. 89).
7. 	Search Warrant Applications
On May 18, 2023, TFO Gossen applied for and was granted a state court warrant
to install a GPS tracking device on the Chrysler 200. In his declaration in support of an
application for the tracking warrant, TFO Gossen included the following concerning CI-
1:
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During the period between May 10th and May 17th, 6 your Declarant
developed CI 23-2252 who stated they could purchase M30 Fentanyl pills
from an individual they knew as “James”. CI 23-22507 stated this individual
stays in Fargo, but travels to the Chicago area on a weekly basis to obtain
M30 Fentanyl pills to transport to Fargo for distribution. The CI believed
the male was currently staying in the area of Community Homes in the 2200
BLK 6th Avenue South, Fargo. Your Declarant proceeded to open an
investigation into this individual based off the provided information.
On March 15th, 2023,8 CI 23-2252 arranged a controlled purchase
from this unidentified individual for approximately 20 counterfeit M30
Fentanyl Pills, which the CI would purchase from this individual for $200
of prerecorded buy fund money. The transaction was planned to occur at a
predetermined location in Fargo, North Dakota. Please note, the CI was in
possession of an audio recording device during the exchange. Detectives
from the Cass County Drug Task Force observed the CI meet with this
unidentified individual. Detectives conducting surveillance at the time of
the transaction observed CI 23-2252 enter the passenger seat of a vehicle
bearing North Dakota license 066EAH, and exit a short time later. CI 23-
2252 received 19 M30 Fentanyl pills from this unidentified male and the CI
gave the unidentified male the prerecorded buy fund money.
(Doc. 80-1, pp. 4-5) (footnotes added). TFO Gossen’s declaration included no
information about CI-1’s two sales of controlled substances to CI-2, no information
about the search of CI-1’s residence, no information about CI-1 having not returned to
the designated meeting location immediately after completing the controlled purchase
on May 15, no information about task force officers having not had “eyes on” CI-1 while
he was in the apartment building, and no information about the audio recording not
including discussion of purchase of any controlled substance. (Tr. 41-42, 78).
6 Since CI-1 signed documents to become a CI on May 15th, it appears the May
17th date was an error.
7 TFO Gossen testified the reference to CI 23-2550 was a typographical error and
the correct reference was CI 23-2252. (Tr. 44).
8 The March 15th date was an error and should have been May 15th.
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On May 21, 2023, a state court judge issued a warrant for a search of the Chrysler
200 (vehicle warrant) based on TFO Gossen’s declaration, which included the same
information concerning CI-1 that had been included in the declaration supporting his
application for a tracking warrant. The declaration added information regarding use of
the tracking device:
On May 19th, 2023, your Declarant placed the GPS tracking device on the
above described vehicle at approximately 12:28 PM. On May 20th, 2023,
your 	Declarant 	observed 	the 	vehicle 	traveling 	Eastbound 	on 	I94 	at
approximately 9:00 AM leaving Fargo. Your Declarant observed via GPS
data the vehicle arriving in the area of Fort Wayne, IN at approximately 9:30
PM on May 20th, 2023. Your Declarant notes the time to travel from Fargo
to Fort Wayne, IN is approximately 12 hours. On May 21st, 2023, your
Declarant observed the vehicle was already Westbound back towards Fargo
in which the vehicle left the area of Fort Wayne, IN at approximately 3:30
AM. Your Declarant continued to follow the GPS data on the vehicle and
observed 	the 	vehicle 	travel 	straight 	through 	towards 	Fargo 	with 	an
estimated arrival time of 3:30 PM on May 21st, 2023.
(Doc. 80-2, p. 5).
A third declaration, which TFO Gossen submitted in applying for a state court
search warrant for two cell phones (cell phone warrant), included the same information
about CI-1 that had been included in the first and second declarations. The third
declaration described that, based on information obtained through the May 18 tracking
warrant, the Chrysler 200 was stopped for a traffic violation on May 21, and though he
provided a false name and false information about his travel route, Griffien was
identified as the driver of the vehicle. A North Dakota Highway Patrol Trooper detected
an odor of burnt marijuana in the vehicle and proceeded to search the vehicle, finding
two packages of THC gummies and two cell phones. Griffien was arrested for providing
a false name, and the Chrysler 200 was towed to a CCDTF location to be further
searched for narcotics. (Doc. 80-3, p. 5). The third warrant, issued by a state court judge
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on May 22, 2023, authorized searches of two cell phones—believed to belong to
Griffien—that were located in the Chrysler 200 during the May 21 traffic stop.
TFO Gossen presented a fourth declaration to a state court judge on May 23,
2023, applying for a search warrant to search a room at the “Roadway [sic] Inn” (motel
room warrant), the location to which law enforcement officers had followed the Chrysler
200 on May 15. The declaration included the same information regarding CI-1 and
regarding the May 21 traffic stop as was included in the third declaration. Additionally,
it stated approximately 1,950 M30 fentanyl pills and 17 grams of marijuana were found
in the Chrysler 200 when it was searched at the CCDTF location pursuant to the May 21
vehicle warrant. (Doc. 80-4).
A fifth state court search warrant, issued on May 30, 2023, again based on a
declaration of TFO Gossen that included the same information regarding CI-1, the traffic
stop, and the search of the Chrysler 200 at the CCDTF location, authorized search of a
storage unit in Fargo (storage unit warrant). That fifth declaration stated Griffien was
heard to reference the storage unit during a recorded call he made while he was in
custody, management at the storage unit company reported a strong odor of marijuana
coming from the unit, and a trained narcotics detection dog had alerted to an odor
emanating from that unit. (Doc. 80-5).
Charges in the December 6, 2023 Indictment include distribution of fentanyl on
May 15, the date of the alleged controlled purchase, possession with intent to distribute
fentanyl on May 21, the date of the traffic stop, and possession of firearms by a
prohibited person on May 30, the date the storage unit warrant was issued.
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Law and Discussion
Under the Fourth Amendment, the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated.” U.S. Const. amend. IV. “The touchstone of [any] analysis under the
Fourth Amendment is always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal security.’” Pennsylvania v.
Mimms, 434 U.S. 106, 108-09 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).
Evidence obtained as the result of an unreasonable search and seizure may be
excluded from trial. Regarding suppression of evidence, the Supreme Court has held,
The Fourth Amendment protects the “right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” The Amendment says nothing about suppressing evidence
obtained in violation of this command. That rule—the exclusionary rule—is
a “prudential” doctrine, Pennsylvania Board of Probation & Parole v. Scott,
524 U.S. 357, 363 (1998), created by this Court to “compel respect for the
constitutional guaranty.” Elkins v. United States, 364 U.S. 206, 217 (1960);
see Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643
(1961). Exclusion is “not a personal constitutional right,” nor is it designed
to “redress the injury” occasioned by an unconstitutional search. Stone v.
Powell, 428 U.S. 465, 486 (1976); see United States v. Janis, 428 U.S. 433,
454 	n.29 	(1976) 	(exclusionary 	rule 	“unsupportable 	as 	reparation 	or
compensatory dispensation to the injured criminal” (internal quotation
marks omitted)). The rule’s sole purpose, we have repeatedly held, is to
deter future Fourth Amendment violations. E.g., Herring v. United States,
555 U.S. 135, 141 and n.2 (2009); United States v. Leon, 468 U.S. 897, 909,
921 n.22 (1984); Elkins, supra, at 217 (“calculated to prevent, not to repair”).
Our cases have thus limited the rule’s operation to situations in which this
purpose is “thought most efficaciously served.” United States v. Calandra,
414 U.S. 338, 348 (1974). Where suppression fails to yield “appreciable
deterrence,” exclusion is “clearly . . . unwarranted.” Janis, supra, at 454.
Davis v. United States, 564 U.S. 229, 236-37 (2011) (internal citations altered).
1. 	Franks Hearing
As previously discussed, defense counsel, via email, requested an evidentiary
hearing during which testimony would be presented, and the United States did not
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oppose the request for a hearing but opposed there being a Franks hearing. The court
scheduled and held an evidentiary hearing. At that hearing, the court recognized there
had not yet been a decision on whether a Franks hearing was warranted but stated that
holding a hearing was “the most expeditious approach” to allow the parties to present
both their evidence and their positions. (Tr. 6). At the hearing, the parties stipulated to
admission of exhibits, and the government called TFO Gossen to testify. (Tr. 7-15).
Griffien had an opportunity to fully cross-examine TFO Gossen, and no other witnesses
were called to testify.
The Seventh Circuit has discussed situations when courts have held evidentiary
hearings before determining whether a Franks hearing was warranted:
It’s not always easy to draw the Franks line between sufficient and
insufficient showings, so in some cases district courts have held “pre-
Franks” hearings to give defendants opportunities to supplement or
elaborate on their original submissions. See, e.g., United States v. Taylor,
154 F.3d 675, 680 (7th Cir. 1998) (noting that in “an excess of caution”
district court held an evidentiary hearing to enable defendant to develop his
Franks argument, treating hearing as one to determine whether the
preliminary showing could be met). Such hearings are well within a district
court’s discretion to aid it in making a sound decision on whether to hold a
full Franks hearing.
The problem arises, though, when a “pre-Franks” hearing becomes a
vehicle 	for 	the 	government 	to 	present 	new 	evidence 	to 	explain 	the
discrepancies identified by the defense, yet the defense is not given a full
opportunity to challenge or rebut that evidence. Such government evidence
is appropriate for the Franks hearing itself, where the defense must have the
opportunity for full cross-examination. United States v. Harris, 464 F.3d
733, 739 (7th Cir. 2006) (“The opportunity to cross-examine an officer who
has intentionally or recklessly made false statements to procure a search
warrant is an important aspect of a Franks hearing.”). In the Harris case,
the district court allowed the government to bolster its affidavits but did not
allow full cross-examination by the defense. For that reason, we reversed
the denial of the Franks motion and remanded for a full hearing on the
merits. Harris, 464 F.3d at 740-41.
. . . .
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17
Allowing 	the 	government 	to 	offer 	evidence 	to 	explain 	the
discrepancies and contradictions in the affidavits—without allowing the
defense a full and fair opportunity to challenge the explanation, as in this
case—“does not satisfy the Fourth Amendment concerns addressed in
Franks.” Id. Instead, in deciding the threshold question whether to grant a
Franks hearing, the court should have limited its consideration of new
information to the defense’s evidence tending to refute probable cause. The
court should not have considered at that preliminary step the government’s
explanation of the contradictions and discrepancies.
United States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013) (citations altered).
A Northern District of Iowa magistrate judge, over the government’s objection,
“decided that he would take up all the evidence at the hearing, hold a Franks hearing
and then determine whether [the defendant] was entitled to the Franks hearing.” United
States v. Miller, No. CR19-2031-LTS, 2019 WL 7212306, at *9 (N.D. Iowa Dec. 27,
2019). The magistrate judge later determined the defendant was not entitled to a Franks
hearing. The defendant objected because the government had presented evidence at the
hearing regarding omissions from a warrant application and, relying on McMurtrey, the
defendant argued that if the magistrate judge intended to conduct a “pre-Franks”
hearing, the government should not have been given an opportunity to present evidence
on the validity of the warrant. The district judge, also relying on McMurtrey, held,
Even if it was improper for [the magistrate judge] to hear evidence from the
Government 	prior 	to 	determining 	if 	[the 	defendant] 	met 	his 	initial
evidentiary burden, I find that [the magistrate judge] did not rely on
evidence from the Government used to “bolster” its affidavit in concluding
that [the defendant] did not make the required substantial preliminary
showing and was not entitled to a Franks hearing. . . . As such, any
procedural error by [the magistrate judge] in hearing the Government’s
evidence before making the Franks determination is harmless. See United
States v. Arnold, 725 F.3d 896, 900, n.3 (8th Cir. 2013) (“We can find no
instance where the district court relied on any information other than the
search warrant affidavit and [defendant’s] own affidavit detailing the
alleged misrepresentations and omissions.”); United States v. Graf, 784
F.3d 1, 7 (1st Cir. 2015) (concluding that even if the magistrate judge erred
in considering evidence from the Government, the district court did not err
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18
in denying a Franks hearing because defendant failed to make the initial
substantial preliminary showing).
Id. at *10.
In United States v. Riddle, the Eighth Circuit determined it was not a procedural
error for a magistrate judge to hold a hearing on a motion for a Franks hearing, at which
officers testified, and after which the magistrate judge recommended a Franks hearing
be granted to address only one of the issues the defendant had raised. 39 F.4th 533 (8th
Cir. 2022). In that case, the district judge ultimately disagreed with the magistrate judge
and denied the defendant’s motion for a Franks hearing. Id. at 537. Relying on the
officer’s testimony to some extent, the Eighth Circuit agreed with the district judge and
concluded the defendant had not “satisfie[d] the ‘substantial preliminary showing’
needed to warrant a Franks hearing.” Id. at 538. As to the magistrate judge having held
a hearing on the motion for a Franks hearing, the Eighth Circuit concluded,
[The defendant’s] contention that the court committed “procedural error”
when it held a hearing on [the defendant’s] motion for a Franks hearing
without 	conducting 	a 	“full” 	Franks 	hearing 	is 	without 	merit. 	[The
defendant’s] counsel had a full opportunity to cross examine [the officer] at
the motion hearing, but was unable to satisfy the “substantial preliminary
showing” necessary to warrant grant of a Franks hearing.
Id.
In another Franks case, a “magistrate judge, after hearing testimony from [an
officer], concluded that his conduct in drafting the affidavit amounted to negligence” but
the officer “did not act recklessly in his efforts to obtain a search warrant.” United States
v. Johnson, 75 F.4th 833, 842 (8th Cir. 2023). On appeal, the defendant argued the
district court abused its discretion because it had not held a Franks hearing. The Eighth
Circuit stated,
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19
[The defendant] contends that the district court abused its discretion by
failing to hold a Franks hearing. But the magistrate judge in her report and
recommendations 	noted 	that 	she 	“granted 	[the 	defendant] 	a 	Franks
hearing.” At this hearing, the magistrate judge heard testimony from Officer
Davis, the affiant, as well as Inspector Brandt, and Woodbury County, Iowa,
Sheriff’s Deputy Todd Peterson. See Conant, 799 F.3d at 1199 (recognizing
that “a Franks hearing was, in effect, conducted when the officers involved
were questioned at the evidentiary hearing, and the district court treated
the evidentiary hearing as a Franks hearing” (quotations omitted)). To the
extent [the defendant] argues he needed another Franks hearing, he fails to
show what additional information would be elicited at such a hearing.
Id. at 841 n.4.
District courts frequently hold hearings on motions raising claims under Franks
before determining whether a Franks hearing is warranted. And courts describe those
hearings in different ways. See, e.g., United States v. McGraw-Williams, No. 23-cr-66,
2024 WL 4647987, at *3-5 (D. Minn. Nov. 1, 2024) (noting the magistrate judge held a
hearing on the defendant’s motion for a Franks hearing, at which a witness testified, and
describing that hearing as a “quasi-Franks” hearing, after which the minutes of that
“quasi-Franks” hearing reflected that the defendant’s motion for a Franks hearing was
granted in part and denied in part). Here, like in Miller, this court does not rely on
evidence presented at the hearing to “bolster” TFO Gossen’s declarations. But the June 4
hearing was, in effect, a Franks hearing. TFO Gossen testified, and Griffien had a full
opportunity to cross-examine him. Neither party suggests any additional information
would be elicited at a second hearing. For that reason, this court recommends the
motion for a Franks hearing be found moot in light of TFO Gossen having testified and
Griffien having had full opportunity to cross-examine him during the June 4 hearing. 9
9 Many courts have concluded motions for Franks hearings are non-dispositive
and may be addressed by magistrate judges. See, e.g., United States v. Johnson, No. 24-
CR-40-1-JPS, 2025 WL 1883565, at *1 (E.D. Wis. July 8, 2025); McGraw-Williams,
2024 WL 4647987, at *5 (citing United States v. Hari, No. 18-cr-150, 2019 WL 7041849,
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2. 	Griffien’s Request for a Franks Hearing10
“Under Franks and its progeny, a defendant may challenge a search warrant on
the grounds that the probable cause determination relied on an affidavit containing false
statements or omissions made knowingly and intentionally or with reckless disregard
for the truth.” United States v. Snyder, 511 F.3d 813, 816 (8th Cir. 2008). “Probable
cause to issue a search warrant exists when the supporting affidavit sets forth sufficient
facts to lead a prudent person to believe that ‘there is a fair probability that contraband
or evidence of a crime will be found in a particular place.’” United States. v. Johnson, 64
F.3d 1120, 1126 (8th Cir. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
“When the affidavit is based substantially on information provided by an
informant, evidence of the informant’s reliability, veracity, and basis of knowledge is
highly relevant to the probable cause determination and may occasionally be critical.”
United States v. Ketzeback, 358 F.3d 987, 991 (8th Cir. 2004) (citation omitted).
“Evidence of the informant’s credibility is not, however, an independent requirement to
at *1 (D. Minn. Dec. 20, 2019)); United States v. Gonzalez-Moreno, 8:23CR2, 2024 WL
278470, at *2 n.2 (D. Neb. Jan. 25, 2024); United States v. Green, Crim No. 19-103,
2020 WL 6337705, at *2 (D. Minn. Oct. 29, 2020); United States v. Little, 2:19-cr-42,
2020 WL 2518053, at *1 n.1 (S.D. Ga. May 14, 2020); Schwartz v. Jones, No. 17-CV-
61752, 2019 WL 8060133, at *2 (S.D. Fla. Dec. 18, 2019); but see In re Search of 4011 E.
Broadway Blvd., Suite 101, Tuscon, AZ, No. CV06-001492, 2006 WL 2989209, at *1 (D.
Ariz. Sept. 21, 2006) (report and recommendation, without an order adopting or
overturning that recommendation, describing a motion for a Franks hearing as
dispositive). Though a motion for a Franks hearing is likely not dispositive, the
undersigned elects to address the issue as a recommendation.
10 Though this court recommends the district judge find Griffien’s motion for a
Franks hearing moot and deny his motion to suppress, this court addresses the parties’
arguments as stated in their briefs, which include arguments regarding Griffien’s
entitlement to a Franks hearing. Whether a defendant is entitled to a Franks hearing
and whether a Franks violation warrants suppression of evidence requires a defendant
to show “the same two requirements.” United States v. O’Neal, 17 F.4th 236, 244 (1st
Cir. 2021).
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21
be rigidly exacted in every case,” and “[t]he existence of probable cause is instead a fluid,
nontechnical judgment made after a practical, commonsense evaluation of the totality of
the circumstances.” Id. (internal quotation marks and citations omitted).
A defendant is entitled to a Franks hearing if the defendant makes a substantial
preliminary showing that (1) an affiant intentionally or recklessly omitted facts from an
affidavit and (2) the omitted facts were necessary to the probable cause finding. United
States v. Engler, 521 F.3d 965, 969 (8th Cir. 2008). This preliminary showing is “not
easily met.” Snyder, 511 F.3d at 816 (quoting United States v. Gabrio, 295 F.3d 880, 883
(8th Cir. 2002)).
Griffien asserts TFO Gossen’s declaration in support of his application for the
tracking warrant intentionally or recklessly omitted eleven facts critical to a probable
cause determination: (1) CI-1 was a known drug-dealer who sold a total of ninety-four
M30 fentanyl pills to CI-2 on April 24, 2023, and May 3, 2023, only about two weeks
prior to CI-1’s alleged May 15, 2023 controlled purchase of nineteen M30 fentanyl pills
from Griffien; (2) CI-1 lied to TFO Gossen five days before CI-1’s alleged purchase from
Griffien when CI-1 denied there were any drugs in his residence but officers found
marijuana and M30 fentanyl pills in his residence, in addition to buy fund money used
during CI-2’s April 24 and May 3 controlled purchases; (3) CI-1 was not developed as a
CI between May 10 and May 17, as TFO Gossen stated in his affidavit, but instead
became a CI “mere moments before” CI-1’s alleged May 15 purchase from Griffien; (4)
CI-1 did not tell TFO Gossen he had purchased fentanyl or other drugs from “James” or
Griffien prior to the alleged May 15 purchase; (5) the audio recording did not
demonstrate the alleged May 15 purchase had actually occurred; (6) after the alleged
purchase, CI-1 did not directly report to the location where he was to meet task force
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22
officers and instead entered his apartment building and walked down a flight of stairs
toward the location of his apartment; (7) CI-1 remained in the apartment building for
about two minutes and thirty seconds before exiting the building; (8) CI-1 returned with
nineteen M30 fentanyl pills instead of the twenty pills he had allegedly arranged to
purchase; 11 (9) CI-1 told TFO Gossen he went inside the apartment building after the
alleged purchase because his and TFO Gossen’s cell phones were dead, which was not
true; (10) CI-1 also told TFO Gossen he went inside the apartment building after the
alleged purchase because that is what he had done following earlier purchases from
Griffien, but the declaration did not state CI-1 had purchased any M30 fentanyl pills
from “James,” or Griffien, prior to the alleged May 15 purchase; and (11) TFO Gossen
“blindly” believed CI-1’s explanation and did not search CI-1’s apartment or the
apartment building following the alleged May 15 purchase. (Doc. 92, pp. 1-2, 7-8, 10-11).
Griffien argues TFO Gossen “failed to provide any corroboration through independent
investigation to validate CI-1’s claims” despite CI-1 having no track record of reliability.
Id. at 14-15. Griffien states TFO Gossen knew CI-1 was a drug dealer and drug user, CI-1
relied on the drug trade for financial support, and CI-1 had lied to TFO Gossen when CI-
1’s apartment was searched on May 10. Griffien asserts CI-1 stated only that he could
purchase pills from “James” and “James” traveled to Chicago weekly to purchase drugs,
but there was no evidence CI-1 told TFO Gossen he had ever purchased drugs from
“James,” and TFO Gossen did not attempt to verify any of the information CI-1
11 The court notes TFO Gossen’s declaration stated, “CI 23-2252 arranged a
controlled purchase from this unidentified individual for approximately 20 counterfeit
M30 Fentanyl Pills” and later stated, “CI 23-2252 received 19 M30 Fentanyl pills from
this unidentified male.” (Doc. 80-1, pp. 4-5). That information in TFO Gossen’s
declaration was accurate.
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provided. Id. at 15. Additionally, Griffien asserts TFO Gossen did not train CI-1 to
conduct a controlled purchase.
The United States argues Griffien has not made a preliminary showing sufficient
to warrant a Franks hearing. The United States contends that, though the declaration
accompanying the tracking warrant application did not include CI-1’s drug use and sale
history, judges recognize CIs often have that history. (Doc. 87, p. 13). The United States
notes the primary issue is CI-1’s credibility but contends CI-1’s statements were partially
corroborated because CI-1 said he could buy M3o fentanyl pills from “James,” officers
watched CI-1 enter Griffien’s Chrysler 200, and CI-1 returned with nineteen M30
fentanyl pills. The United States argues CI-1’s explanation for entering the apartment
building before reporting to the designated meet location was logical—“he did not want
‘James’ to see him approach law enforcement.” (Doc. 87, p. 14). The United States
contends the officers’ observations that CI-1 was only briefly in the apartment building
corroborated CI-1’s explanation, TFO Gossen’s testimony that he saw CI-1 standing in
the hallway when TFO Gossen drove into the apartment building parking lot
corroborated CI-1’s statement that he did not go into his apartment, and the audio
recording was consistent with other residents entering the apartment building front
door while CI-1 was standing in the hallway by the front door. Finally, the United States
argues that even if TFO Gossen’s declaration had included information about CI-1’s
prior drug activity and stated CI-1 briefly entered the apartment building, probable
cause would have nevertheless supported issuance of the tracking warrant.
A. 	Mens Rea
Under Franks, Griffien must make a substantial preliminary showing that TFO
Gossen omitted facts “with the intent to make, or in reckless disregard of whether they
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24
make, the affidavit misleading.” See United States v. Johnson, 75 F.4th 833, 841 (8th
Cir. 2023) (quoting United States v. Conant, 799 F.3d 1195, 1199-1200 (8th Cir. 2015)).
Griffien suggests no evidence that TFO Gossen omitted facts with the intent to mislead
the judge. The question, rather, is whether TFO Gossen omitted facts in reckless
disregard of the effect of those omissions.
The test for determining whether an affiant’s statements were made with
reckless disregard for the truth is whether, after 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.
United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010)
TFO Gossen omitted numerous facts from his declaration: (1) CI-1 was a drug
dealer and user; (2) CI-1 was not well known to TFO Gossen and CI-1’s reliability had
not been established; (3) CI-1 had been dishonest about not having drugs in his
residence on the day of the search of his residence; (4) there is no evidence CI-1 had
purchased any controlled substances from “James” prior to May 15; (5) no independent
investigation corroborated any of the information CI-1 provided prior to the alleged May
15 purchase; (6) CI-1 signed the Confidential Informant Agreement the same day as, and
only just before, the alleged May 15 purchase; (7) because of background noise, the
audio recording does not confirm CI-1 purchased any pills from Griffien; (8) CI-1 did
not return to the designated meet location after the alleged purchase but instead entered
his apartment building and went down the stairs toward his apartment; (9) CI-1 was in
his apartment building for two minutes and thirty seconds before exiting; and (10) CI-1’s
explanation of why he entered his apartment building was not straightforward—in
addition to saying he did not want to be seen meeting officers, CI-1 later texted TFO
Gossen and stated he “walked back” because their phones had died, which TFO Gossen
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25
testified was not true. Both parties speculate about what might have happened inside
the apartment building, and task force officers did not conduct any search of the
apartment building, or of CI-1’s apartment, to attempt to verify what CI-1 did during
that time. It is therefore not clear whether CI-1 entered his apartment following the
alleged controlled purchase before coming outside to TFO Gossen’s vehicle.
In United States v. Jacobs, the Eighth Circuit determined an officer recklessly
omitted relevant information from an affidavit supporting a search warrant application.
986 F.2d 1231 (8th Cir. 1993). Jacobs involved a search of a package sent via Federal
Express. An officer’s affidavit stated a drug detection dog was presented with eight
packages, including a package being sent to the defendant, and the dog “exhibited an
interest in only that particular package addressed to [the defendant].” 12 Id. at 1233. The
affidavit did not state the dog did not alert to the package. The Eighth Circuit stated,
Because of the highly relevant nature of the omitted information, we hold
the omission occurred at least with reckless disregard of its effect upon the
affidavit. [The officer] knew that the dog had failed to alert to the box before
he submitted the affidavit to the magistrate judge, yet he did not include
this information. Any reasonable person would have known that this was
the kind of thing the judge would wish to know.
Id. at 1234-35.
Like in Jacobs, this court views certain information omitted from TFO Gossen’s
declaration as highly relevant to whether there was probable cause to issue the tracking
warrant. Any reasonable person would have known the reviewing judge would have
12 The officer underlined the word “interest” in his affidavit. The defendant
argued that by underlining “interest,” the officer “was attempting to mislead the
magistrate judge by emphasizing the word in such a fashion as to equate it with the term
of art ‘alert.’” Jacobs, 986 F.2d at 1234. The Eighth Circuit declined to speculate about
the officer’s intention in underlining “interest,” noting that while the defendant’s
interpretation was plausible, it was equally likely the officer was trying to highlight that
an alert did not occur. Id.
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26
wanted to know the recording device did not confirm the alleged transaction, especially
since TFO Gossen wrote, “Please note, the CI was in possession of an audio recording
device during the exchange.” Additionally, any reasonable person would have known the
reviewing judge would have wanted to know CI-1 deviated from the plan when he went
into his apartment building for two minutes and thirty seconds—during which law
enforcement officers did not have “eyes on” him—before providing nineteen M30
fentanyl pills to the task force officers. Other omitted information undermined CI-1’s
credibility, which a reviewing judge would have wanted to know, especially considering
CI-1’s deviation from the plan and the recording device having not confirmed
conversation about the alleged purchase. Considering these facts, under the Jacobs
standard TFO Gossen had obvious reasons to doubt the accuracy of the information he
reported. The district judge should therefore conclude Griffien met his burden of
showing TFO Gossen omitted facts in reckless disregard of whether they made his
declaration misleading.
B. 	Probable Cause
To be entitled to a Franks hearing, Griffien must also “show that the affidavit, if
supplemented with the omitted information, would not be sufficient to support a finding
of probable cause.” Id. at 1235. The omissions Griffien identifies call CI-I’s reliability
into question, and the controlled purchase by CI-1 was the sole basis TFO Gossen’s
declaration gave for probable cause to issue the tracking warrant. The critical question is
this—if the declaration had included the omitted information, would the declaration
have been sufficient to support a finding of probable cause?
In a case that involved somewhat similar facts, the First Circuit affirmed a district
court’s denial of a motion for a Franks hearing. Because of other corroborating
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27
information, the court concluded an officer’s failure to disclose that background noise
prevented an audio recording device from capturing a CI’s controlled purchase of
cocaine, that the CI did not meet with officers immediately after the controlled
purchase, and that the CI instead left the area with an unidentified person before
turning over the purchased cocaine were not material omissions from the affidavit
supporting the search warrant application. United States v. Leonard, 17 F.4th 218, 223-
27 (1st Cir. 2021). The Leonard court deemed the omissions not material “because the
omitted information would not have negated the considerable force of other information
in the affidavit, particularly the consistency of information provided by three separate
confidential informants.” Id. at 225. In Leonard, three CIs provided consistent, detailed,
first-hand information about the defendant’s criminal activity, two of the CIs had proved
reliable in the past and one of them did not act as a CI for any consideration but rather
was motivated by a desire to help, and the third CI implicated himself to some degree.
Id. at 225-26. Additionally, prior to the challenged transaction, the officer corroborated
some of the information the CIs had provided through independent investigation. Id. at
226.
As to the problems with the controlled purchase, the First Circuit noted “the
affidavit did not state that the [recording] device documented useful evidence” and the
affidavit cited the CI directly—not the recording device—as the source of information
about the defendant’s activities during the controlled purchase. Id. at 226-27 & n.8.
Further, the First Circuit noted officers were able to surveil the defendant’s address to
some extent during the controlled purchase but stated “more problematic [was] that the
CI traveled away from [the defendant’s address] with another person before meeting the
agents to turn over the purchased cocaine, raising at least a speculative possibility that
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28
someone other than [the defendant] had been the source of the drugs the CI turned over
to police.” Id. at 227. However, the First Circuit concluded “a ‘less than ideal’ controlled
buy can still provide some support for a probable cause finding, particularly where, as
here, the buy yielded information that was consistent with what the police were told by
the three CIs.” Id.
The facts here are distinguishable from those in Leonard. TFO Gossen stated in
his declaration, “Please note, the CI was in possession of an audio recording device
during the exchange” and “CI 23-2252 received 19 M30 Fentanyl pills from this
unidentified male and the CI gave the unidentified male the prerecorded buy fund
money.” (Doc. 80-1, p. 5). TFO Gossen did not state, as the officer in Leonard had done,
whether he learned Griffien had provided CI-1 with the fentanyl pills from the recording
device or from CI-1. Additionally, unlike in Leonard, CI-1 had not been proven reliable
before May 15 and provided little information about “James” prior to that date, there is
no evidence TFO Gossen independently investigated “James” prior to the alleged
controlled purchase, no other individual corroborated any of the information CI-1 had
provided, and CI-1 was somewhat dishonest about why he went into the apartment
building after the alleged controlled purchase.
The government asserts CI-1’s statements were “partially corroborated” in several
ways. (Doc. 80, p. 20). The declaration stated CI-1 told TFO Gossen he could purchase
fentanyl pills from an individual he knew as “James,” CI-1 arranged a controlled
purchase with an unidentified individual, and officers observed CI-1 enter the passenger
side of a vehicle that Griffien was driving and exit the vehicle a short time later. Though
CI-1, whose credibility had not been established and was undermined, went into his
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29
apartment building for two minutes and thirty seconds, CI-1 provided the task force
officers nineteen fentanyl pills thereafter.
Though it is an extremely close call, had TFO Gossen’s declaration included
information about CI-1’s credibility, that the recording device did not capture the
alleged exchange, and that CI-1 was in his apartment building for two minutes and thirty
seconds after the alleged controlled purchase and before providing task force officers
nineteen M30 fentanyl pills, the issuing judge may nonetheless have found probable
cause to issue the tracking warrant. Even if TFO Gossen had included the omitted
information in his declaration, the reviewing judge may have concluded CI-1 purchased
the pills from Griffien.13 The district judge should therefore conclude Griffien has not
met his burden of showing that the declaration, if supplemented with the omitted
information, could not have supported a finding of probable cause.
3. 	Good Faith Exception
The government contends, even if probable cause did not support issuance of the
tracking warrant, the evidence later found in Griffien’s vehicle should not be suppressed
because the good faith exception to the exclusionary rule applies. (Doc. 87, p. 16). The
good faith exception applies if an officer obtained evidence in objectively reasonable,
good faith reliance on a search warrant. United States v. Leon, 468 U.S. 897, 922 (1984).
13 The Eighth Circuit has, at times, described the defendant’s required
preliminary Franks showing in different ways: (1) the defendant must show “the
affidavit, if supplemented with the omitted information, would not be sufficient to
support a finding of probable cause,” Jacobs, 986 F.2d at 1235 (citation omitted); (2)
“‘only if the affidavit as supplemented by the omitted material could not have supported
the existence of probable cause’ will suppression be warranted,” id. (citation omitted);
and (3) “the defendant must show ‘that the alleged omission[s] would have made it
impossible to find probable cause,’” United States v. Stropes, 387 F.3d 766, 771 (8th Cir.
2004) (citation omitted).
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The good faith exception does not apply if “a reasonably well[-]trained officer would
have known that the search was illegal despite the issuing judge’s authorization.” United
States v. Watkins, 66 F.4th 1179, 1183 (8th Cir. 2023) (quoting United States v. Randall,
39 F.4th 533, 536 (8th Cir. 2022)).
Courts recognize four circumstances under which an officer’s reliance on a search
warrant can be found objectively unreasonable:
(1) the affiant misled the issuing judge with a knowing or reckless false
statement; (2) the issuing judge wholly abandoned her judicial role; (3) the
supporting affidavit was so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable; or (4) the warrant was
so facially deficient that the executing officer could not reasonably presume
its validity.
Id. (quoting United States v. Hay, 46 F.4th 746, 751 (8th Cir. 2022)). Accordingly, if one
of those circumstances is present, “a Franks violation cannot be excused under the Leon
good faith exception to the exclusionary rule.” United States v. Cowling, 648 F.3d 690,
695 n.4 (8th Cir. 2011); see also United States v. Macias-Perez, No. CR 11-2024, 2011
WL 2532923, at *13 (N.D. Iowa June 24, 2011) (stating that “if the Court finds a Franks
violation, then it precludes a finding of objective reasonableness, as required by Leon).
The government acknowledges the same standard is used to determine whether a
Franks hearing is warranted (or whether a Franks violation occurred) and whether the
Leon good faith exception applies. (Doc. 80, p. 25 n.4). Thus, if the district judge
concludes a Franks violation occurred, the district judge should also conclude the good
faith exception to the exclusionary rule does not apply. 14
14 As discussed earlier, in this court’s opinion TFO Gossen had obvious reasons to
doubt the accuracy of the facts he included in his declaration and omitted facts in
reckless disregard of whether the omissions made his declaration misleading. Though
the circumstances present here are not among those recognized in Watkins, since TFO
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4. 	Independent Source Doctrine
The government also argues if the court determines the tracking warrant was not
supported by probable cause, the independent source doctrine applies. (Doc. 87, pp. 21-
24). The independent source doctrine is another exception to the exclusionary rule.
Utah v. Strieff, 579 U.S. 232, 238 (2016). “The independent source doctrine allows
admission of evidence initially discovered during, or as a consequence of, an unlawful
search, but later obtained independently from activities untainted by the initial
illegality.” United States v. Green, 39 F.4th 510, 513 (8th Cir. 2022) (citations omitted).
Under the independent source doctrine, the government bears the burden to show “(1)
law enforcement would have sought a warrant to seize the evidence even if the unlawful
search never occurred, and (2) probable cause supported the warrant after excluding all
information obtained by the unlawful search.” Id.
The government contends that, if the tracking warrant was not supported by
probable cause, the trooper smelling marijuana during the May 21 traffic stop, the
finding of THC gummies in the vehicle, and the vehicle warrant were “independent
sources allowing the lawful search of Griffien’s vehicle” after it was towed to the CCDTF
location. (Doc. 87, p. 24). But, as Griffien argues, law enforcement would likely not have
stopped the vehicle but for the tracking warrant, and the trooper would not have
smelled marijuana or found THC gummies in the vehicle had the vehicle not been
tracked. This court recognizes the possibility Griffien would have been stopped for a
traffic violation even if officers had not been tracking his vehicle. But even if he were
stopped (without information from the tracking device) and a trooper smelled
Gossen executed the warrant under those circumstances, the court questions whether
the good faith exception could apply.
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marijuana, the initial search of the Chrysler 200 uncovered only cell phones and THC
gummies. And possession of THC gummies is an infraction or misdemeanor under
North Dakota law. See N.D. Cent. Code § 19-03.1-23(7)(2). Griffien was not charged
with possession of THC gummies and does not request to suppress any evidence derived
from the traffic stop. Importantly, the government does not assert the circumstances of
the traffic stop gave it probable cause to tow the Chrysler 200 to a CCDTF location to
later search the vehicle more thoroughly. Instead, the government states the vehicle was
searched at the CCDTF location pursuant to the vehicle warrant. (Doc. 87, p. 17).
The government states, “The troopers took Griffien into custody for providing
false information to law enforcement. TFO Gossen subsequently obtained a search
warrant to search the vehicle. While searching Griffien’s vehicle, pursuant to the search
warrant, officers found approximately 1,950 M30 fentanyl pills.” Id. (citation omitted
and emphasis added). However, according to the search warrant documents, TFO
Gossen obtained the vehicle warrant prior to the traffic stop. The vehicle warrant was
issued on May 21, 2023, at 1:52 p.m. (Doc. 80-2, p. 1). And the declarations supporting
the applications for warrants to search the cell phones, motel room, and storage unit
stated law enforcement stopped the Chrysler 200 for a traffic violation on May 21, 2023,
sometime after 3:18 p.m. (Doc. 80-3, p. 5; Doc. 80-4, p. 5; Doc. 80-5, pp. 5-6). Indeed,
TFO Gossen’s declaration supporting his application for the vehicle warrant did not
include any information related to the May 21 traffic stop. (See Doc. 80-3, p. 5).
Officers found approximately 1,950 M30 fentanyl pills when they searched the
Chrysler 200 at the CCDTF location. TFO Gossen’s declaration supporting his
application for the vehicle warrant included the same information concerning CI-1 that
had been included in TFO Gossen’s declaration supporting his application for the
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33
tracking warrant. The declaration concerning the vehicle warrant added information
regarding use of the tracking device but added no other information that would have
had any bearing on probable cause. 15 (See Doc. 80-2, p. 5). Thus, if the tracking warrant
was not supported by probable cause, and information regarding use of the tracking
warrant were excluded, probable cause to issue the vehicle warrant would also have
been lacking. If the district judge finds the tracking warrant application was not
supported by probable cause, the district judge should also conclude the vehicle warrant
was not supported by probable cause and the independent source doctrine would not
apply. 16
5. 	Attenuation Doctrine
Finally, the government argues application of the attenuation doctrine if the
court determines the tracking warrant was not supported by probable cause. (Doc. 87,
pp. 24-27). Like good faith and the independent source doctrine, the attenuation
doctrine is an exception to the exclusionary rule. Utah, 579 U.S. at 238. “The attenuation
15 TFO Gossen’s declaration in support of the tracking warrant stated CI-1 could
obtain fentanyl from an individual named “James” who traveled to the “Chicago area”
weekly to obtain M30 Fentanyl pills and who stayed in the “Community Homes area” in
the 2200 block of 6th Avenue South, Fargo. The individual identified after the
controlled purchase was “Taron Dejuan Griffien,” who was staying at the “Rodeway Inn”
near University Drive South, Fargo. And, through the tracking warrant, TFO Gossen
learned Griffien travelled to Fort Wayne, Indiana, and not the Chicago area. The
information CI-1 provided about “James” was ultimately not consistent with what was
discovered through the investigation and through use of the tracking warrant.
16 In his post-hearing brief, Griffien argues evidence seized from the storage unit
should be suppressed, in addition to evidence of fentanyl. (Doc. 92, pp. 9, 19). The
government has not had an opportunity to address that argument since Griffien did not
raise that issue in his pre-hearing brief and Griffien’s post-hearing brief was filed after
the government filed its post-hearing brief. If the district judge concludes evidence of
the May 15 operation and the May 22 vehicle search should be suppressed, he should
permit additional briefing on whether evidence seized from the storage unit should be
suppressed.
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doctrine evaluates the causal link between the government’s unlawful act and the
discovery of evidence.” Id. To determine whether the attenuation doctrine applies, the
court considers three factors: (1) the temporal proximity between the unconstitutional
conduct and the discovery of the evidence, (2) the presence of intervening
circumstances, and (3) the purpose and flagrancy of the official misconduct. United
States v. Forjan, 66 F.4th 739, 748 (8th Cir. 2023) (citing Utah, 579 U.S. at 239). The
government bears the burden to show attenuation. See United States v. Alvarez-Manzo,
570 F.3d 1070, 1077 (8th Cir. 2009) (affirming a motion to suppress when the
government “failed to demonstrate” any attenuation or breaking of the causal
connection between an officer’s unlawful conduct and the fruits of that conduct).
The government argues that even if the tracking warrant was not supported by
probable cause, no evidence should be suppressed because the issuance of the tracking
warrant and the May 22 discovery of 1,950 M30 fentanyl pills was attenuated by the
traffic stop. (Doc. 87, pp. 24-27). Specifically, the government argues (1) the time
between issuance of the tracking warrant, the traffic stop, and the finding of the M30
fentanyl pills was not brief; (2) attenuating circumstances included the traffic stop, what
occurred during that stop, Griffien’s arrest, and the search of the vehicle at the CCDTF
location; and (3) and any mistake TFO Gossen might have made was in good faith. Id. at
26-27.
As discussed above, if the tracking warrant was not supported by probable cause,
neither was the vehicle warrant. The time between TFO Gossen obtaining the vehicle
warrant and execution of that warrant was brief—law enforcement searched the
Chrysler 200 the day after TFO Gossen obtained the vehicle warrant. See id. at 26.
While the government argues the circumstances of the traffic stop and Griffien’s arrest
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were attenuating circumstances, those events, while intervening, did not break the
causal chain between the vehicle warrant and the execution of that warrant. The
government does not assert the Chrysler 200 was towed to the CCDTF location and
searched because Griffien provided a false name and a trooper discovered THC
gummies in the vehicle. Rather, the government states the search of the Chrysler 200 at
the CCDTF location was “pursuant to a search warrant.” Id. While the traffic stop
provided an opportunity for law enforcement to take possession of the Chrysler 200
pursuant to the vehicle warrant, that did not sever the connection between issuance and
execution of the vehicle warrant. Finally, while the government argues any mistake TFO
Gossen made was in good faith, that factor would likely not weigh in the government’s
favor for the same reason the good faith exception would not apply. If the district judge
finds the tracking warrant was not supported by probable cause, the district judge
should also conclude the vehicle warrant was not supported by probable cause and the
attenuation doctrine would not apply. 17
Recommendation
For the reasons discussed above, this court recommends the district judge find
the motion for a Franks hearing, (Doc. 78), moot, deny Griffien’s motion to suppress,
(Doc. 76), and deny his motion to dismiss, (Doc. 78). If, however, the district judge
concludes a Franks violation occurred, this court recommends the district judge
conclude an exception to the exclusionary rule does not apply and grant Griffien’s
17 As previously discussed, in his post-hearing brief, Griffien argues evidence
seized from the storage unit should be suppressed. (Doc. 92, pp. 9, 19). If the district
judge concludes evidence of the May 15 operation and the May 22 vehicle search should
be suppressed, he should permit additional briefing on whether evidence seized from
the storage unit should be suppressed.
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motion to suppress fentanyl pills seized from his vehicle and permit additional briefing
to address whether any exception to the exclusionary rule applies to evidence seized
from a storage unit.
Dated this 31st day of October, 2025.
/s/ Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge
NOTICE OF RIGHT TO OBJECT18
Any party may object to this Report and Recommendation, by filing with the
Clerk of Court no later than November 17, 2025, a pleading specifically identifying
those portions of the Report and Recommendation to which objection is made and the
basis of any objection. Failure to object or to comply with this procedure may forfeit the
right to seek review in the Court of Appeals.
18 See Fed. R. Crim. P. 59; D.N.D. Crim. L.R. 59.1(D)(3)
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