USA v. Shanholtzer

United States v. Ford
3:19-cr-00112-TMB-MMS-3
Final R&R on Motion to Suppress [Doc. 104]
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KENNETH ANTONIO KIAIRE FORD,
Defendant.
3:19-cr-00112-TMB-MMS-3
FINAL REPORT AND
RECOMMENDATION ON MOTION
TO SUPPRESS [Doc. 104]1
I. MOTION PRESENTED
Defendant, Kenneth Anotonio Kiaire Ford, is charged by indictment with one count
of drug conspiracy in violation of 21 U.S.C. § 846 and 841(a)(1), (b)(1)(A). [Doc. 12].
Ford, through counsel, filed a “Motion to Suppress purs[u]ant to US v. Hall.” [Doc. 104].
The Motion seeks to suppress evidence collected from the search warrant executed on 8040
1 This report and recommendation is being issued as a final report and recommendation. Pursuant
to Fed. R. Crim. P. 59(b)(3), any objections will be considered by the District Court Judge, who
will accept, reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge
for additional consideration and recommendations.
Case 3:19-cr-00112-JMK-SAO Document 167 Filed 07/30/20 Page 1 of 5

United States v. Ford
3:19-cr-00112-TMB-MMS-3
Final R&R on Motion to Suppress [Doc. 104]
Boundary Avenue, Apartment [redacted], Anchorage, Alaska,2 on October 2, 2019.3 [Doc.
104 at 1-2]. Ford asserts that the search warrant lacked probable cause because of “reckless
or intentional concealment” of a confidential informant’s [“CI”] criminal history, which
included a conviction for Felony Scheme to Defraud4. Per Ford, that conviction divested
the CI—and, by extension, any information he/she supplied to law enforcement—of any
credibility. [Id. at 5]. Because the search warrant in question relied upon the CI’s
information, 	Ford 	contends 	that 	the 	search 	warrant 	lacks 	“sufficient 	independent
corroboration to provide probable cause.” [Id. At 12].
The Government does not object to suppressing all items seized in the execution of
the search warrant in question, though it “strongly disagrees with the contentions in the
[D]efendant’s motion.”5 [Doc. 110 at 1-2].
2 See Doc. 104 at FN 2, in which defense counsel asserts that defendant’s expectations of privacy
rights should be respected because the affiant law enforcement officer names the above
referenced address as “FORD’s residence,” and therefore it is established under Local Criminal
Rule 47.1(b)(3), that the address should be private. The notice is untimely and a bit contradictory.
Counsel filed the instant Motion in open court, without the process or forethought to seal the
exhibit or redact the appropriate apartment number.
3 Doc. 104 at FN 1 references no court assigned number to the search warrant. The search warrant
was issued at 10:14 pm. The normal protocol for after-hour warrants does not require a case
number for the judge to determine probable cause to issue a search warrant; rather a case number
will be assigned the following business day, or as soon as practicable, by the clerk’s office.
4 AS 11.46.600.
5 Per the Government, while it “strongly disagrees with the contentions in the [D]efendant’s
motion, including his construction of the affidavit supporting the warrant, [the] characterization
of the affiant’s conduct, and the ultimate conclusion that the search was illegal or improper;” it
has no objection to suppressing all fruits of the search of ‘Ford’s residence’ to preserve resources.
[Doc. 110 at 1-2].
Case 3:19-cr-00112-JMK-SAO Document 167 Filed 07/30/20 Page 2 of 5

United States v. Ford
3:19-cr-00112-TMB-MMS-3
Final R&R on Motion to Suppress [Doc. 104]
Pursuant 	to 	28 	U.S.C. 	§ 636(b)(1)(B), 	this 	Court 	hereby 	issues 	a 	Final
Recommendation regarding this Motion. For the reasons set forth below, this Motion to
Suppress should be GRANTED to the items seized at ‘Ford’s residence’ on October 2,
2019.6
II. CASE LAW
If the defendant establishes perjury or reckless disregard of the concealment
of material information by a preponderance of evidence, and with the
concealed 	material 	provided, 	the 	resulting 	evidence 	is 	insufficient 	to
establish probable cause, then ‘the search warrant must be voided and the
fruits of the search excluded to the same extent as if probable cause were
lacking.’ U.S. v. Hall, 113 F.3d 157, 159 (9th Cir. 1997)(citing Franks v.
Delaware, 438 U.S. 154, 156 (1978)).
In Hall, the District Court and the 9 th Circuit agreed, the withholding of a CI’s
criminal history that involved lying to the police was “material.” The reviewing Magistrate
Judge, District Court and the 9 th Circuit concluded that, based upon the facts and the record,
the issuing state magistrate judge would not have issued the search warrant without the
CI’s testimony. U.S. v. Hall, 113 F.3d at 159.
This Court notes a recent 9th Circuit case, U.S. v. Carrasco, wherein a “search
warrant application [was found to] contain[] sufficient information to establish probable
cause,” even though an agent failed to provide additional details about a CI’s criminal
history. 807 F. App’x 708, 708 (9 th Cir. 2020)(finding an agent’s omissions of a CI’s
criminal history was not material to the probable cause finding of the search warrant
6 This Report and Recommendation does not, in any way, support the assertions made by Ford in
his Motion; without an evidentiary hearing to allow for findings of fact, this Court will not
address the claims of concealment of facts or exaggeration of information provided by the affiant.
Case 3:19-cr-00112-JMK-SAO Document 167 Filed 07/30/20 Page 3 of 5

United States v. Ford
3:19-cr-00112-TMB-MMS-3
Final R&R on Motion to Suppress [Doc. 104]
because 	co-defendant’s 	statements 	were 	properly 	included 	providing 	the 	same
information.); but see U.S. v. Hall, 113 F.3d 157, 159 (9th Cir. 1997) (finding the omission
of criminal history of the CI was material to the probable cause finding; therefore the fruits
of the search warrant were appropriately suppressed)
III. CONCLUSION
The Government does not object to suppressing the items seized pursuant to the
executed search warrant; consequently, this Court considers the Motion to Suppress as
unopposed. However, doing so should not be read as finding a lack of probable cause for
law enforcement to search Ford’s residence. Absent an evidentiary hearing—during which
all of the evidence relied upon by the Magistrate Judge could be reviewed—this Court is
unable to make a finding of fact regarding whether or not the non-CI-based evidence would
have provided the Magistrate Judge sufficient, independent, grounds to issue the warrant.7
Given that the Government does not oppose suppressing the fruits of the search of
Ford’s residence, which is the purpose of the present Motion, such a finding of fact is
unnecessary. In accordance with the wishes of the parties, this Court recommends the
Motion to Suppress [Doc. 104] be GRANTED.
DATED this 30th day of July, 2020, at Anchorage, Alaska.
s/ Matthew M. Scoble
U.S. MAGISTRATE JUDGE
7 This Court notes the distinct differences between Hall and the current situation. In the instant
case, the CI was not presented to the issuing magistrate judge as the main material provider of
information; rather this was an investigation that involved information from a co-defendant and
a history of packages being seized or tracked by the postal service.
Case 3:19-cr-00112-JMK-SAO Document 167 Filed 07/30/20 Page 4 of 5

United States v. Ford
3:19-cr-00112-TMB-MMS-3
Final R&R on Motion to Suppress [Doc. 104]
Pursuant to Fed. R. Crim. P. 59(b)(2) and D. Alaska Loc. Mag. R. 6(a), a party seeking to object to this
final finding and recommendation shall file written objections with the Clerk of Court no later than the
CLOSE OF BUSINESS on August 13, 2020. Pursuant to Fed. R. Crim. P. 59(b)(3), objections will be
considered first by the District Court Judge, who will then accept, reject, or modify the recommendation,
or resubmit the matter to the Magistrate Judge for additional consideration. Failure to object to a magistrate
judge’s findings of fact may be treated as a procedural default and waiver of the right to contest those
findings on appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The Ninth Circuit concludes
that a district court is not required to consider evidence introduced for the first time in a party’s objection
to a magistrate judge’s recommendation. United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections
and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in
motion 	papers. 	Rather, 	objections 	and 	responses 	shall 	specifically 	designate 	the 	findings 	or
recommendations objected to, the basis of the objection, and the points and authorities in support.
Response(s) to the objections shall be filed on or before the CLOSE OF BUSINESS on August 20, 2020.
The parties shall otherwise comply with provisions of D. Alaska Loc. Mag. R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed. R. App.
P. 4(a)(1) should not be filed until entry of the District Court’s judgment. See Hilliard v. Kincheloe, 796
F.2d 308 (9th Cir. 1986).
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