United States v. Romero (382 F. Supp. 3d 966, 2019)

Troy L. Nunley, United States District Judge

This matter is before the Court on Defendant Salvador Perez Padilla's Motion to Suppress Evidence Obtained From Tainted Warrant (ECF No. 36), as well as Defendant Eberardo Mendez's Joinder in Co-Defendant Salvador Padilla's Motion to Suppress (ECF No. 39). The United States opposes the motions filed by Padilla and Mendez (hereafter, "Defendants"). (ECF No. 43.) The Court held a hearing on the motions on December 6, 2018. (See ECF No. 50.) For the reasons articulated on the record during that hearing, and for the reasons set forth in this Order, the Court DENIES the motions.

I. FACTUAL AND PROCEDURAL BACKGROUND

Along with Defendant Jose Luis Romero, Padilla was charged in Count One of an Indictment, issued on April 19, 2018, with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 ; and was charged in Counts Two, Three, and Four of the Indictment with distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 19 at 1-3.) Mendez was charged in Counts One, Three, and Four of the Indictment. (ECF No. 19 at 1-3.) The government, on November 1, 2018, dismissed Count Three of the Indictment as to Padilla and Mendez only. (See ECF No. 38.) Padilla filed the instant motion to suppress on October 9, 2018. (ECF No. 36.) Mendez filed a joinder to Padilla's motion that set forth additional arguments applicable to Mendez only. (ECF No. 39.) Mendez subsequently pleaded guilty to Count One of the Indictment, and his sentencing hearing is currently pending. (See ECF No. 81; ECF No. 76.)

A. Factual Background

i. November 27, 2017 Application for Tracking Warrant

During an investigation into methamphetamine distribution in the Sacramento area, a special agent for the U.S. Drug Enforcement Administration ("DEA") named Amie Anderson applied to a magistrate judge on November 27, 2017, for a warrant to install a global positioning system ("GPS") tracking device on a 1996 Chevrolet Impala with California license plate 6FZU625. (ECF No. 36 at 7; ECF No. 39-1 at 2-10.) Agent Anderson's application identified the driver of the Impala as an individual named Anthony Blanks, who was present during an alleged narcotics transaction involving Romero. (ECF No. 36 at 7; ECF No. 39-1 at 6-8.)

ii. April 9, 2018 Probable Cause Affidavit

Following months of subsequent investigation of the suspected drug trafficking organization, including law enforcement observations generated from the tracking device installed on the Impala (see ECF No. 36 at 9), Agent Anderson swore out a probable cause affidavit on April 6, 2018, which was filed with the Court on April 9, 2018 (ECF No. 1, Apr. 9, 2018). This affidavit was made in support of search warrants for three residential properties in Sacramento, California; a gray Nissan Murano with California license plate 7WGS486; and the Impala. (ECF No. 1 ¶ 1, Apr. 9, 2018.) Agent Anderson's affidavit was also made in support of a criminal complaint as well as arrest warrants for Romero, Mendez, and Blanks. (ECF No. 1 ¶ 2, Apr. 9, 2018.) The affidavit identified Romero as "a pound-level methamphetamine distributor in the Sacramento area" (ECF No. 1 ¶ 10, Apr. 9, 2018), named Mendez as one of Romero's suppliers and the owner of the Murano (ECF No. 1 ¶¶ 10, 72, Apr. 9, 2018), and named Blanks as another of Romero's suppliers and the registered owner of the Impala (ECF No. 1 ¶¶ 10, 18, Apr. 9, 2018).

Agent Anderson's April 9 affidavit included the following information. On October 24, 2017, a confidential source working for federal law enforcement agencies initiated a request for a controlled purchase of methamphetamine from Romero, with the transaction scheduled to occur the following day around noon. (ECF No. 1 ¶ 13, Apr. 9, 2018.) Ten minutes before the controlled drug purchase was set to occur on October 25, federal agents observed the Impala arrive at Romero's home, where its driver met with Romero. (ECF No. 1 ¶ 16, Apr. 9, 2018.) The Impala and its driver departed from Romero's residence prior to the controlled purchase, which took place at around 12:25 p.m., and appeared to conduct counter-surveillance maneuvers before parking at 5120 25th Street in Sacramento. (ECF No. 1 ¶¶ 17, 19-20, Apr. 9, 2018.) At the time of the affidavit, the Impala was registered to Anthony Blanks at 7390 Cranston Way in Sacramento. (ECF No. 1 ¶ 18, Apr. 9, 2018.) About half an hour following the confidential informant's controlled purchase of methamphetamine from Romero, the Impala and its driver returned to Romero's residence and picked up Romero. (ECF No. 1 ¶¶ 20-21, Apr. 9, 2018.) Three minutes later, law enforcement agents observed the Impala parked at an O'Reilly Auto Parts store a short distance away on Fruitridge Road. (ECF No. 1 ¶ 22, Apr. 9, 2018.) Romero went inside the store while the Impala's driver initially stayed inside the vehicle. (ECF No. 1 ¶ 22, Apr. 9, 2018.) While the driver remained inside the Impala, a Sacramento Police Department patrol officer contacted the driver. (ECF No. 1 ¶ 22, Apr. 9, 2018.)

Following this apparently uncoordinated and unexpected local law enforcement contact (see ECF No. 1 ¶ 24, Apr. 9, 2018), the Impala's driver joined Romero inside the auto parts store (ECF No. 1 ¶ 22, Apr. 9, 2018). A federal law enforcement agent then took "several digital photos of both subjects" while they were inside the store. (ECF No. 1 ¶ 23, Apr. 9, 2018.) After this surveillance concluded, "BLANKS was identified as the driver of the Impala based on an agent's observations and comparison with a DMV photo of BLANKS." (ECF No. 1 ¶ 23, Apr. 9, 2018.) Federal agents then corroborated their identification of Blanks as the person driving the Impala that day by speaking with the Sacramento Police Department dispatcher who recorded the patrol officer's contact with the Impala's driver while it was parked outside the O'Reilly Auto Parts store. (ECF No. 1 ¶ 24, Apr. 9, 2018.) The Sacramento Police Department not only confirmed that Blanks was the Impala's driver at the time of the contact, but also informed federal agents that Blanks was a member of Sacramento's Norteño street gang. (ECF No. 1 ¶ 24, Apr. 9, 2018.)

Federal agents continued to monitor the man they had identified as Blanks and observed him, along with Romero and Mendez, engage in numerous subsequent activities suggestive of an active conspiracy to distribute methamphetamine. Specifically, agents observed this individual drive the Impala to and from Romero's residence just prior to controlled methamphetamine purchases from Romero on December 4, 2017. (ECF No. 1 ¶¶ 32-42, Apr. 9, 2018.) The individual identified as Blanks drove the Impala at times of day consistent with his having received telephonic contact from Romero "several times near the time of the controlled purchase." (ECF No. 1 ¶ 45, Apr. 9, 2018.) The same is largely true of law enforcement observation of the individual identified as Blanks on February 13, 2018, with the addition on this date of Mendez appearing to act as a courier between the individual identified as Blanks and Romero. (ECF No. 1 ¶ 49-56, Apr. 9, 2018.) Federal agents also concluded that the individual they identified as Blanks tried to hide his Impala from law enforcement detection by covering it with a tarp at an address other than his primary residence. (ECF No. 1 ¶ 69, Apr. 9, 2018.) And on March 6, 2018, as Agent Anderson was surveilling the man she believed to be Blanks, that individual approached her and took a photograph or video of her with his phone. (ECF No. 1 ¶ 70, Apr. 9, 2018.) The individual thought to be Blanks then followed Agent Anderson's vehicle for about half a mile after she terminated surveillance. (ECF No. 1 ¶ 71, Apr. 9, 2018.)

The DEA subpoenaed records of various cellular phone numbers that communicated with Romero at times which suggested that the owner of the numbers was coordinating methamphetamine distribution with Romero. (ECF No. 1 ¶¶ 81-85, Apr. 9, 2018.) The subscriber account for each of these numbers contained some variation of the name "Nick Cole" along with a mailing address that contained some variation of the number thirty-eight. (ECF No. 1 ¶¶ 81-85, Apr. 9, 2018.) Agent Anderson averred that based on her training and experience, she believed that these cellular phone numbers were used by the person who agents had identified as Blanks. (ECF No. 1 ¶ 86, Apr. 9, 2018.)

The magistrate judge who reviewed Agent Anderson's affidavit found that it established probable cause, inter alia , to search the residence of the individual identified as Blanks (5120 25th Street in Sacramento) and to arrest the individual thought to be Blanks. (ECF No. 1 at 24, Apr. 9, 2018.)

iii. Warrant Execution

Federal law enforcement agents executed the warrant to search 5120 25th Street on April 10, 2018; however, when they encountered the individual they believed to be Blanks inside the residence, they discovered that his name was not actually Anthony Blanks. (ECF No. 1 ¶ 11, Apr. 10, 2018; ECF No. 43 at 2.) Instead, following some initial confusion, the individual inside the residence at 5120 25th Street identified himself as Salvador Padilla. (ECF No. 43 at 2.) "[O]nly then did the agents realize that the man they had been following on surveillance for six months and believed was Anthony Blanks was actually Salvador Padilla." (ECF No. 43 at 2.) The federal agents executing the warrants nonetheless arrested Padilla, "based on probable cause that he had committed various offenses of the federal criminal code." (ECF No. 1 ¶¶ 11, 93, Apr. 10, 2018.)

iv. April 10, 2018 Probable Cause Affidavit

That same day, following execution of the warrants for which she had previously applied, Agent Anderson swore out a new probable cause affidavit in support of a criminal complaint and arrest warrant issued for Padilla. (ECF No. 1 at 21, Apr. 10, 2018.) The April 10 affidavit attributed substantially the same conduct to Padilla as the affidavit filed the day before had attributed to Blanks. Specifically, the April 10 affidavit set forth law enforcement's observation of multiple contacts Padilla had with Romero both before and after Romero sold a pound of methamphetamine to an undercover agent on October 25, 2017, including almost the same sequence of subsequent events involving Padilla, Romero, the Sacramento Police Department patrol officer, and the O'Reilly Auto Parts store on Fruitridge Road with the exception of any reference to the Norteño gang. (ECF No. 1 ¶¶ 15-28, Apr. 10, 2018.) The April 10 affidavit also described: (i) multiple contacts Padilla had with Romero both before and after Romero sold a pound of methamphetamine to an undercover agent on December 4, 2017 (ECF No. 1 ¶¶ 36-50, Apr. 10, 2018); (ii) multiple contacts Padilla had with Romero and Mendez prior to another controlled methamphetamine purchase from Romero on February 13, 2018 (ECF No. 1 ¶¶ 51-63, Apr. 10, 2018); (iii) Padilla's attempts to evade law enforcement surveillance and detection by moving the Impala to a location other than his residence and by covering it with a tarp (ECF No. 1 ¶ 71, Apr. 10, 2018); (iv) Padilla's efforts to record and follow Agent Anderson as she surveilled him on March 6, 2018 (ECF No. 1 ¶¶ 72-73, Apr. 10, 2018); and (v) the strategy of attempting to evade digital detection through the use of multiple cellular phone numbers registered to a variant of the name "Nick Cole" at different Sacramento-area addresses, all of which contained a variant of the number thirty-eight (ECF No. 1 ¶¶ 83-88, Apr. 10, 2018).

However, Agent Anderson did more than simply replace every instance of the name "Blanks" in the April 9 affidavit with the name "Padilla" in the April 10 affidavit. The April 10 affidavit stated that federal law enforcement agents obtained independent evidence during their execution of the search warrant at 5120 25th Street suggesting that Padilla was, in fact, the person previously believed to be named Blanks. (ECF No. 1 ¶ 94, Apr. 10, 2018.) This evidence included: (i) the fact that Padilla was renting a bedroom inside 5120 25th Street for $ 450 per month in cash; (ii) the certificate of title for the Impala, issued to Blanks and located inside Padilla's bedroom; (iii) Padilla's driver license, located inside the bedroom; and (iv) one of the cellular phones that agents had been tracking, also located inside the bedroom. (ECF No. 1 ¶ 94, Apr. 10, 2018.) The cellular phone in question rang from underneath the sheets of Padilla's bed when Agent Anderson dialed a number that she knew to be registered to an account in the name of Nick Colt in Sacramento, and that had been used to communicate with Romero around the time a government agent asked Romero if he could purchase two pounds of methamphetamine. (ECF No. 1 ¶¶ 81-82, 94, Apr. 10, 2018.)

Agent Anderson's April 10 affidavit requested the issuance of a criminal complaint and arrest warrant for Padilla, which was granted that same day. (ECF No. 1 ¶ 95, Apr. 10, 2018.)

B. Procedural Background

i. Defendants' Motions

Characterizing it as fruit from a poisonous tree, Padilla filed a motion to suppress all evidence obtained against him that derived from the initial warrant to track the Impala that had been based on the misidentification of Padilla as Blanks. (ECF No. 36 at 9.) Padilla argues that either (i) "the identification of Mr. Blanks by his DMV photo was accurate, in which case Mr. Padilla should not have been arrested," or else (ii) "the identification of Mr. Blanks was inaccurate and false (as the subsequent affidavit claims) and cannot form the basis for the warrant - much less probable cause to arrest Mr. Padilla."

(ECF No. 36 at 7.) According to Padilla, all the evidence obtained from the warrants reliant upon the agents' misidentification of Padilla as Blanks must be suppressed because the original warrant to track the Impala was only issued on the basis of probable cause that depended on this false identification. (ECF No. 36 at 7-9.)

Padilla also argues that pursuant to legal principles articulated in Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), he is entitled to an evidentiary hearing to probe the factual background of agents' misidentification of him as Blanks. (ECF No. 36 at 3-4 ("A defendant is entitled to an evidentiary hearing if s/he 'makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.' " (quoting United States v. Craigshead , 539 F.3d 1073, 1080-81 [sic] (9th Cir. 2008))).) Padilla argues that the correct identity of the individual driving the Impala throughout the agents' surveillance of this drug trafficking organization was "plainly material" to the magistrate judge's finding of probable cause in the April 9 affidavit. (ECF No. 36 at 4.) Padilla also argues that this misidentification was reckless because law enforcement agents failed to take certain steps to verify that they had correctly identified the Impala's driver as Blanks. (See ECF No. 36 at 5 ("There is no evidence that the agents ever attempted to go to 7390 Cranston Way, the known address of Mr. Blanks.").)

Padilla's co-defendant, Mendez, filed a motion a short time later that joined in Padilla's suppression motion. (ECF No. 39 at 1.) Mendez's motion asks the Court to "traverse the [November 2017] mobile tracking warrant and suppress all evidence collected against Mendez as a result of the DEA's use of the mobile tracking device." (ECF No. 39 at 5.) Mendez argues that the Court should suppress "any observation and surveillance intel gathered against Mendez as a result of knowing the Impala's location on relevant dates and times, including any evidence collected on February 13, 2018." (ECF No. 39 at 5-6.)

ii. Government's Opposition

The government filed a single opposition to both motions in which it disputes Defendants' argument that the misidentification of Padilla as Blanks was an intentional or reckless error. (ECF No. 43.) The government instead characterizes the misidentification as a mere mistake that does not mandate a Franks evidentiary hearing. (ECF No. 43 at 5.)

Specifically, the government points out that "any misidentification of the two men was reasonable" because Padilla and Blanks are similar in "height, weight, build, and age." (ECF No. 43 at 6.) In support of that argument, the government points the Court's attention to the following images: a California Department of Motor Vehicles ("DMV") database image of Blanks (ECF No. 43-1 at 1, 54); an image of Padilla's California driver license (ECF No. 43-1 at 1, 56); and a surveillance image of Padilla and Romero taken by law enforcement agents on October 25, 2017, while the two men were inside the O'Reilly Auto Parts store on Fruitridge Road (ECF No. 43-1 at 1, 58). The government also argues that even if Padilla had been correctly identified in Agent Anderson's original probable cause affidavit, that affidavit would still have supplied probable cause to support the warrants approved by the magistrate judge. (ECF No. 43 at 7.)

iii. Hearing

The Court held a hearing on Defendants' suppression motions on December 6, 2018. (See ECF No. 50.) The Court heard compelling oral argument from both sides, expressed doubt that the warrants must be suppressed as violative of the Fourth Amendment, and took the matter under submission. (See ECF No. 50.)

iv. Subsequently Filed Investigator Report

Following the December 6, 2018 hearing, Padilla filed a report from a private investigator named Robert Hessee. (ECF No. 53.) Hessee's report sets forth the content of an interview Hessee conducted with Blanks on September 15, 2018, in which Blanks told Hessee that he has known Padilla for many years, that Blanks owns the Impala at issue in this case, and that Blanks drove it frequently between October 2017 and March 2018. (ECF No. 53-1 at 1.) According to Hessee's report, Blanks does remember driving to the O'Reilly Auto Parts store on Fruitridge Road, but "does not remember the specific date that he drove the car to and from O'Reilly auto parts." (ECF No. 53-1 at 1.) Finally, Blanks's statement to Hessee disclaims any previous gang contact or affiliation as well as any knowledge of the name "Nick Cole" that was used to register the multiple cellular phones that agents tracked over the course of the investigation. (ECF No. 53-1 at 1.) The Hessee report contains information that Padilla stated he would introduce into evidence through live testimony in the event of a Franks hearing. (ECF No. 53 at 1.)

II. STANDARD OF LAW

The Fourth Amendment states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The Supreme Court has clearly articulated the procedure to be followed when, as here, a defendant brings a Fourth Amendment challenge to a law enforcement officer's probable cause affidavit:

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks , 438 U.S. at 155-56, 98 S.Ct. 2674.

"A defendant is entitled to a Franks hearing only if he makes a two-fold showing: intentional or reckless inclusion or omission, and materiality." United States v. Bennett , 219 F.3d 1117, 1124 (9th Cir. 2000). Hence, a defendant must first "demonstrate some intentional or reckless falsity, at a minimum, before a further inquiry [in the form of an evidentiary hearing] is required." United States v. Ruddell , 71 F.3d 331, 334 (9th Cir. 1995) (citing Franks , 438 U.S. at 171-72, 98 S.Ct. 2674 ). While "[c]lear proof is not required" in order to merit a full evidentiary hearing, United States v. Chesher , 678 F.2d 1353, 1362 (9th Cir. 1982), the defendant's preliminary showing of intentional or reckless falsity must be "accompanied by an offer of proof,"

Franks , 438 U.S. at 171, 98 S.Ct. 2674, one that is "substantial," id. at 155-56, 98 S.Ct. 2674. Indeed, "[a]llegations of negligence or innocent mistake are insufficient" to qualify for an evidentiary hearing. Id. at 171, 98 S.Ct. 2674 ; see also United States v. Burnes , 816 F.2d 1354, 1358 (9th Cir. 1987) ("Mere negligence in 'checking or recording the facts relevant to a probable-cause determination' is not sufficient to warrant a Franks hearing." (quoting Franks , 438 U.S. at 170, 98 S.Ct. 2674 ) (citing United States v. Brooklier , 685 F.2d 1208, 1221 (9th Cir. 1982) )). Furthermore, "if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Franks , 438 U.S. at 171-72, 98 S.Ct. 2674.

However, if the defendant meets his or her initial burden to make a substantial preliminary showing of intentional or reckless falsity combined with materiality, then a Franks hearing is merited "to investigate the veracity of the affiant." United States v. Dozier , 844 F.2d 701, 704 (9th Cir. 1988) (citing United States v. Kiser , 716 F.2d 1268, 1271 (9th Cir. 1983) ). At this hearing, the defendant must establish - now by meeting the more demanding standard of a preponderance of the evidence - that the warrant affiant's challenged averments were made intentionally or with reckless disregard for the truth. Franks , 438 U.S. at 155-56, 98 S.Ct. 2674. If the defendant at this hearing proves intentional or reckless falsity by a preponderance of the evidence, and if "the affidavit's remaining content [once stripped of all false material] is insufficient to establish probable cause," the fruits of the warrant will be excluded. Id. at 156, 98 S.Ct. 2674.

Finally, underlying all the foregoing is the well-settled rule that "[i]n doubtful cases, preference should be given to the validity of the warrant." Burnes , 816 F.2d at 1357 (alteration in original) (quoting United States v. McQuisten , 795 F.2d 858, 861 (9th Cir. 1986) ). This deference extends to the affidavit underlying the warrant, for the "inquiry [of whether a defendant has made a substantial preliminary showing of deliberate or reckless falsity] begins with a presumption that an affidavit in support of a search warrant is valid." United States v. Meek , 366 F.3d 705, 716 (9th Cir. 2004) (citing Franks , 438 U.S. at 171, 98 S.Ct. 2674 ).

A. Intentional or Reckless Disregard for the Truth

Generally, a misstatement in a probable cause affidavit is made with reckless disregard for the truth where the affiant displays a "high degree of awareness of probable falsity." United States v. Senchenko , 133 F.3d 1153, 1158 (9th Cir. 1998) ; see also United States v. Souffront , 338 F.3d 809, 822 (7th Cir. 2003) ("The defendant [to qualify for a Franks hearing] 'must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard.' " (citing United States v. McNeese , 901 F.2d 585, 594 (7th Cir. 1990) )). The line between a substantial preliminary showing of reckless disregard for the truth and a showing of mere negligent mistake can be somewhat amorphous. See, e.g. , United States v. Hamilton , No. CR11-415-JCC, 2012 WL 5834886, at *6 (W.D. Wash. Nov. 16, 2012) ("There appears to be little case law defining the term 'reckless disregard for the truth' in this context."). As a result, most of the cases delineating this line in the Ninth Circuit are heavily fact-dependent, and a few of the more relevant cases deciding where to draw that line are briefly described below.

i. United States v. Chesher

In Chesher , 678 F.2d at 1360-61, the Ninth Circuit held that an affidavit incorrectly naming Chesher as a member of the Hells Angels Motorcycle Club was made with reckless disregard for the truth because the affiant ignored several readily discoverable facts showing that Chesher was no longer a member of that Club.

Specifically, the affiant failed to uncover information that Chesher had been expelled from the Hells Angels even though another law enforcement agent had no trouble learning of Chesher's expulsion within months of its occurrence. Id. Indeed, the other law enforcement agent wrote a report explicitly stating that Chesher was no longer in the Hells Angels. Id. Furthermore, the affiant failed to uncover this report despite (i) the affiant's representations that he had investigated the Hells Angels for twelve years and (ii) the proffered fact that the affiant had spoken to the report's author on more than one occasion after the report was produced. Id. at 1361. Finally, the affiant based his assertion of Chesher's Hells Angels membership on information that was at least four years old. Id.

The Ninth Circuit reasoned that it was reckless for the affiant not to know that Chesher had been expelled from the Hells Angels because that knowledge was readily available, as evidenced by the facts that (i) another law enforcement agent found out about Chesher's expulsion within months of its occurrence, (ii) the agent wrote a report to that effect, and (iii) the affiant spoke to the agent about Chesher without uncovering that Chesher was no longer a Hells Angel. Id. at 1360-61. And with respect to the affiant's reliance on years-old information regarding Chesher's membership, the Ninth Circuit stated that the "use of information this out of date as a basis for an expression of [the affiant's] current belief tends to support a claim of recklessness." Id. at 1361. The affiant in this case clearly had reason to question whether Chesher was still a member of the Hells Angels, consistent with the Ninth Circuit's later articulation of reckless disregard requiring a "high degree of awareness of probable falsity." Senchenko , 133 F.3d at 1158.

ii. United States v. Burnes

In Burnes , 816 F.2d at 1357-58, the defendant in a drug prosecution challenged as recklessly false, inter alia , an affiant's statements that (i) agents observed vehicles make a number of stops at the defendant's residence that lasted shorter than twenty minutes, and were therefore consistent with narcotics trafficking; and (ii) a plastic bottle seen in the possession of the defendant's associate probably contained ephedrine, which is an ingredient used to manufacture methamphetamine. The defendant argued that the first statement was deliberately or recklessly false because an investigatory report from the affiant's same agency stated that many of the vehicles that stopped at his residence stayed for much longer than twenty minutes. Id. at 1357. And regarding the second statement that the bottle seen in the defendant's associate's possession probably contained a constituent ingredient for methamphetamine, the defendant argued that this was made with reckless disregard for the truth because "further investigation by the officers might have revealed that the chemical bottle obtained by the [defendant's associate] is not unique to ephedrine." Id. at 1358.

The Ninth Circuit held that it was likely reckless for the affiant to mischaracterize the length of the vehicle stops at the defendant's house, because the report written by the investigating officers' agency clearly demonstrated the statement's factual falsity. Id. at 1357-58 ("The Bureau of Narcotics Enforcement investigation report, however, indicates that occupants of only four vehicles stayed at the residence between five and twenty minutes. The occupants of nine of the remaining vehicles stayed between twenty minutes and fifty minutes. The occupants of two vehicles stayed for more than one hour."). However, the averment regarding the contents of the plastic bottle that agents observed in the possession of the defendant's associate was not made recklessly. Id. at 1358. The Ninth Circuit held that "the most that can be said of the officers' failure to further investigate [the contents of the plastic bottle] is that they were negligent," because they came to their conclusion about the bottle's contents based on their experience and observations. Id. In doing so, the Ninth Circuit reiterated the rule that "[m]ere negligence in 'checking or recording the facts relevant to a probable-cause determination' is not sufficient to warrant a Franks hearing." Id. (quoting Franks , 438 U.S. at 170, 98 S.Ct. 2674 ) (citing Brooklier , 685 F.2d at 1221 ).

These holdings are consistent with the Ninth Circuit's later articulation of reckless disregard requiring a "high degree of awareness of probable falsity." Senchenko , 133 F.3d at 1158. Like in Chesher , the existence of the investigative report undermining the affidavit's representations of the frequency with which cars stopped at the defendant's house made the affiant's awareness of probable falsity highly likely. Burnes , 816 F.2d at 1357-58. Conversely, such awareness was not evident regarding the affidavit's statements as to the plastic bottle's contents because (i) there was no available affirmative indication undercutting the agents' conclusions, and (ii) the law does not compel an evidentiary hearing where an affiant simply fails to check all possible facts relevant to a probable cause determination. Id. at 1358.

iii. United States v. Dozier

In Dozier , 844 F.2d at 705-06, the probable cause affidavit supporting a search warrant in a drug investigation contained two affirmative misstatements. First, the affiant stated that the defendant had multiple drug-related convictions when he, in fact, had only a single conviction that had been set aside and dismissed. Id. at 705. Second, the affiant stated that a car observed on the defendant's property was registered to an individual who had been arrested for cultivating marijuana. Id. at 706. In reality, the affiant had previously verified with the DMV that the car in question was not registered to the individual claimed in the affidavit. Id.

The Ninth Circuit upheld the district court's decision finding that there was "no evidence that [the affiant's] conduct was intentional or reckless." Id. at 705. Regarding the first misstatement, because the affiant "simply did not know how to read the California rap sheets[,] the district court [properly] determined the misstatement was a product of negligence." Id. This is consistent with Ninth Circuit law that a finding of reckless disregard for the truth requires more than an affiant's mistake, and instead must be characterized by a "high degree of awareness of probable falsity." Senchenko , 133 F.3d at 1158. Regarding the second misstatement, the Ninth Circuit agreed that the affiant did not demonstrate reckless disregard for the truth even in the face of the district court's finding that it was "hard to reconcile [the affiant's] actual knowledge with his false statement" that was included in the affidavit. Dozier , 844 F.2d at 706. Though it does not explicitly state as much, this holding suggests that even where it appears the affiant may have known that a statement included in an affidavit was false, that may still be insufficient to qualify as deliberately reckless because it does not evince a "high degree of awareness of probable falsity." Senchenko , 133 F.3d at 1158.

iv. United States v. Martinez-Garcia

In United States v. Martinez-Garcia , 397 F.3d 1205, 1214-16 (9th Cir. 2005), the defendant challenged an affiant's failure to uncover certain information that allegedly would have demonstrated that the defendant's residence to be searched was not as closely connected to a drug distributor as the probable cause affidavit suggested. The affidavit in question stated that there was probable cause to believe drugs would be found at the defendant's residence because (i) an informant had actually seen the drug distributor dispensing methamphetamine at the residence, (ii) agents observed government informants entering the residence to purchase drugs, and (iii) government records reflected that the drug distributor lived at the residence. Id. at 1215-16. The defendant argued that further investigation by the affiant would have demonstrated that the drug distributor, in reality, no longer lived at the residence and had no control over it. Id. at 1214.

The Ninth Circuit held that the defendant failed to make a substantial preliminary showing of the affiant's reckless disregard for the truth, because even if it was true that the affiant could have uncovered additional information reducing the strength of the connection between the drug distributor and the residence in question, "[l]aw enforcement officers acting in reasonable reliance on tips from a reliable informant, corroboration through police observation and official driving records need not track down every piece of information that might potentially be relevant before filing a warrant affidavit." Id. at 1216. In contrast, the Ninth Circuit in the same case held that the affiant's failure to state that the informant was facing federal drug charges - charges for which prosecutors had agreed to recommend leniency in exchange for the informant's participation in the instant investigation - did constitute a substantial preliminary showing of reckless disregard for the truth. Id. (citing Franks , 438 U.S. at 171-72, 98 S.Ct. 2674 ). The fact that the affiant's knowing omission of this information from his affidavit was "uncontroverted," id. , strongly suggests that it met the Ninth Circuit's "high degree of awareness of probable falsity" standard, Senchenko , 133 F.3d at 1158.

B. Materiality and Probable Cause

Even if a defendant makes a substantial preliminary showing of deliberately or recklessly false misstatements included in a warrant affidavit, those misstatements must still be material. Bennett , 219 F.3d at 1124. "Knowing or reckless falsehoods...are immaterial when the affidavit would still support probable cause after the purported falsehoods are removed...." United States v. Christensen , 624 Fed.Appx. 466, 474 (9th Cir. 2015) (citing United States v. Garcia-Cruz , 978 F.2d 537, 541 (9th Cir. 1992) ).

Determining whether probable cause exists for a search warrant requires a neutral magistrate to make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit..., there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Krupa , 658 F.3d 1174, 1177 (9th Cir. 2011) (quoting Jones v. United States , 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ). The standard is the same for the probable cause required before a warrantless arrest is valid. Devenpeck v. Alford , 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) ("[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed."). This same probable cause, of course, is also required before an arrest warrant may issue. Fed. R. Crim. P. 4(a). However, "the standard for probable cause is not terribly demanding," and in the context of an arrest it "merely asks whether, under the totality of the circumstances, a prudent officer would have believed that there was a fair probability that [the defendant] committed a crime." United States v. Collins , 427 F.3d 688, 691 (9th Cir. 2005). Indeed, "the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for...conclud[ing]' that probable cause existed." Krupa , 658 F.3d at 1177 (alterations in original) (quoting Jones , 362 U.S. at 271, 80 S.Ct. 725 ). And the law, of course, is clear that "a magistrate's determination of probable cause should be paid great deference by reviewing courts." Id.

The Ninth Circuit has held that probable cause exists in narcotics distribution cases where (i) law enforcement agents monitor controlled drug purchases from drug dealers and their associates, (ii) these conspirators are observed interacting with one another in close temporal proximity to controlled purchases, and (iii) these conspirators employ counter-surveillance driving techniques around the same time. United States v. Chavez-Miranda , 306 F.3d 973, 977-78 (9th Cir. 2002). Furthermore, under circumstances such as these where a surveillance target is "reasonably suspected of supplying the [narcotics]," a search warrant for evidence or contraband related to narcotics distribution in the target's residence will be upheld. Id. at 978. And with respect to installation of a GPS tracking device on a vehicle, courts have found probable cause where a law enforcement agent's affidavit combines (i) a modicum of evidence showing communication between the driver of a target vehicle and the subject of a narcotics investigation with (ii) the affiant's experience establishing that such evidence is indicative of criminality. See United States v. Garcia-Lopez , No. CR-13-01609-001-PHX, 2015 WL 2152766, at *2 (D. Ariz. May 6, 2015).

III. ANALYSIS

Defendants' motions to suppress must be denied because they fail to show that Defendants are entitled to a Franks evidentiary hearing. First, Defendants fail to meet their burden to make a substantial preliminary showing that the misidentification of Padilla as Blanks was anything more than a negligent mistake. See Franks , 438 U.S. at 155-56, 171, 98 S.Ct. 2674. Second, they fail to demonstrate that Agent Anderson's affidavits, once purged of the erroneous identification of Padilla as Blanks, were insufficient to supply probable cause to track the 1996 Chevrolet Impala or search the two residences listed on the warrants. Id. at 171-72, 98 S.Ct. 2674 ("[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.").

A. Negligent Misidentification of Padilla

The available evidence establishes, at most, that Agent Anderson was negligent when she included in her probable cause affidavits a mistaken identification of Padilla as Blanks. Nothing in the record demonstrates that she had the requisite "high degree of awareness of probable falsity" necessary to merit a Franks hearing. Senchenko , 133 F.3d at 1158.

i. Initial Misidentification of Padilla

Agent Anderson's probable cause affidavit makes it clear that there were multiple data points suggesting that Blanks, not Padilla, was the person driving the 1996 Chevrolet Impala during law enforcement surveillance in late 2017. The Impala's DMV registration was in Blanks's name at an address used by Blanks. (ECF No. 1 ¶¶ 18, 35, Apr. 9, 2018.) The driver of the Impala identified himself as Blanks to a Sacramento Police Department officer during an apparently unrelated proactive contact with the driver (ECF No. 1 ¶ 24, Apr. 9, 2018), a proactive contact that occurred on the same day that federal agents observed the driver engage in activity consistent with narcotics distribution (ECF No. 1 ¶¶ 16-21, Apr. 9, 2018). Furthermore, Padilla's appearance on October 25, 2017, was consistent with the data regarding Blanks's appearance in the DMV database that agents used to make their initial erroneous identification. (ECF No. 1 ¶ 23, Apr. 9, 2018.) The DMV database listed Blanks as five feet, eleven inches tall and weighing more than 200 pounds. (ECF No. 43-1 at 54.) The database further demonstrated that Blanks had a shaved head at the time his photograph was taken. (ECF No. 43-1 at 54.) Padilla's physical appearance at the time he was photographed with Romero inside the O'Reilly Auto Parts store on October 25, 2017, was similar in that he appeared to be about six feet tall and over 200 pounds. (ECF No. 43-1 at 56, 58.) While not entirely bald, Padilla's hair was not so outgrown on this date that it would have caused a reasonable person to question whether Padilla was a different man from the individual in the driver's license he provided to local law enforcement. (ECF No. 43-1 at 56, 58; ECF No. 1 ¶ 24, Apr. 9, 2018.)

The Court also notes that it has observed Padilla in person more than once, and has compared his in-court appearance to the DMV database image of Blanks that the DEA agents used to identify him. (See ECF No. 43 at 6; ECF No. 43-1 at 54.) Padilla's appearance is more than sufficiently similar to Blanks's DMV image such that a reasonable person could believe they are one and the same individual. (Compare ECF No. 43-1 at 54, with ECF No. 43-1 at 58); cf. Rivera v. Cty. of L.A. , 745 F.3d 384, 389 (9th Cir. 2014) (holding that probable cause existed to arrest a suspect where the "height and weight descriptors associated with the warrant, although not matching [the suspect] exactly, were within one inch and ten pounds of [the suspect's] true size"); Neylon v. Cty. of Inyo , No. 1:16-CV-0712 AWI JLT, 2018 WL 3740535, at *7 (E.D. Cal. Aug. 3, 2018) (concluding that two individuals who shared "the same gender, a similar build, three prior names, one purported birthday, are of a similar age, and can be described as being of the same race" were sufficiently similar to support a reasonable belief they were the same person). Based on its own percipient knowledge, the Court simply disagrees with Defendants' conclusions that Blanks and Padilla are physically dissimilar. (See ECF No. 36 at 6 ("A simple look at a DMV photo of Mr. Blanks would have revealed that he and Mr. Padilla were not the same individual."); ECF No. 39 at 5 (arguing that "Blanks and Padilla do not look alike").) To the contrary, the Court finds that the available photographic evidence is a compelling indication that Agent Anderson's misidentification of Padilla as Blanks was nothing more than "negligence or innocent mistake." Franks , 438 U.S. at 171, 98 S.Ct. 2674 ; see also Burnes , 816 F.2d at 1358 ("Mere negligence in 'checking or recording the facts relevant to a probable-cause determination' is not sufficient to warrant a Franks hearing." (quoting Franks , 438 U.S. at 170, 98 S.Ct. 2674 ) (citing Brooklier , 685 F.2d at 1221 )).

The Court's conclusion in this regard is supported by the Ninth Circuit's holding in Dozier , 844 F.2d at 705, that it was not reckless for an affiant to inaccurately state that the defendant in a narcotics investigation had multiple drug-related prior convictions. It was negligence, not reckless disregard for the truth, for the affiant in that case to overstate the number of the defendant's prior drug convictions because the affiant "simply did not know how to read the California rap sheets." Id. A rap sheet is composed of objective conviction data which yields a binary answer to the question of how many prior convictions are associated with a particular defendant. While it is true that the question of whether Padilla is the person depicted on Blanks's driver license also yields a binary answer, the visual information that Agent Anderson and her colleagues interpreted in misidentifying Padilla as Blanks is much more subjective and open to varying degrees of interpretation than is the information on a criminal rap sheet. It includes data points like skin tone, eye placement, hair style, body weight, and height. (See ECF No. 43-1 at 54, 56, 58.) If it was not reckless disregard for the truth for the Dozier affiant to misinterpret objective data contained in a defendant's printed criminal history, it was not reckless for the DEA team in this case to arrive at an inaccurate identification based on visual data that is more subjective and calls for more nuanced interpretive conclusions.

Furthermore, Agent Anderson is not the only person who misidentified Padilla as Blanks. The Sacramento Police Department officer who contacted the Impala's driver on October 25, 2017, appeared to make the same mistake Agent Anderson did. (ECF No. 1 ¶ 24, Apr. 9, 2018.) So did the other federal agents on surveillance that day. (ECF No. 1 ¶ 23, Apr. 9, 2018; see also ECF No. 43 at 2.) This distinguishes the instant case from Chesher , on which Defendants rely. (See ECF No. 36 at 5.) The reckless disregard for the truth in Chesher , 678 F.2d at 1360-61, came from the affiant's failure to uncover the facts about the defendant's Hells Angels membership despite the affiant speaking with another law enforcement officer who knew those facts and had written a report incorporating those facts. Contrastingly, Defendants in the instant case present no evidence that any law enforcement agent knew of Padilla's correct identity at the time of Agent Anderson's April 9 affidavit. See Franks , 438 U.S. at 155-56, 98 S.Ct. 2674 (requiring a defendant's offer of proof of reckless disregard at this stage to be "substantial"). And while Chesher does not stand for the proposition that such proof is a prerequisite for a finding of reckless disregard, the fact that there is zero evidence that any non-affiant officer had knowledge of Padilla's correct identity undermines Chesher 's applicability here. (See ECF No. 1 ¶¶ 23-24, Apr. 9, 2018.) Along the same lines, the fact that Agent Anderson simply made the same mistake that an unaffiliated Sacramento Police Department officer made further undercuts Defendants' contention that the misidentification of Padilla as Blanks had a sinister motive or was driven purely by a desire to effectuate an arrest. (See ECF No. 36 at 7-9.)

Application of the Ninth Circuit's holding in Burnes , 816 F.2d at 1357-58, also compels the Court's conclusion. The reckless disregard for the truth found in Burnes was a product of the affiant including in a probable cause affidavit information about the frequency of vehicle visits to a suspected drug distributor's house - information that was directly contradicted by a written investigation report prepared by the same agency to which the affiant belonged. Id. In the instant case, there is no evidence that anyone within the DEA - or within the Sacramento Police Department, for that matter - possessed information contrary to what Agent Anderson and her colleagues believed regarding the identity of the Impala's driver. (See ECF No. 1 ¶¶ 23-24, Apr. 9, 2018.) Indeed, all the agents associated with the DEA and the Sacramento Police Department came to the same conclusion that Blanks was the Impala's driver on October 25, 2017. (ECF No. 1 ¶¶ 23-24, Apr. 9, 2018.) It is hard to see how Agent Anderson could have acted with a "high degree of awareness of probable falsity," Senchenko , 133 F.3d at 1158, when - unlike the affiants in Chesher , 678 F.2d at 1360-61, and Burnes , 816 F.2d at 1357-58, who ignored readily available contradictory information - Agent Anderson made the same mistake as her fellow officers based on the same available information regarding the Impala's driver's identity.

For the reasons set forth above, Defendants fail to make a substantial preliminary showing, see Franks , 438 U.S. at 155-56, 171, 98 S.Ct. 2674 (requiring a substantial preliminary showing of more than mere negligence), that Agent Anderson and her colleagues misidentified the Impala's driver in the face of a "high degree of awareness of probable falsity" on October 25, 2017, Senchenko , 133 F.3d at 1158. Accordingly, Defendants are not entitled to a Franks hearing on the topic of agents' initial misidentification of the driver of the 1996 Chevrolet Impala on October 25, 2017.

ii. Subsequent Failure to Correct Initial Misidentification

Defendants argue that even if Agent Anderson's initial misidentification was a mere mistake, it was still reckless disregard for the truth for the DEA team to fail to correct it over the remainder of its investigation. (See ECF No. 36 at 6 ("Agent Anderson was surveilling Mr. Romero for months. She saw him meet with the driver of the Impala on multiple occasions. It is well within the investigative power of the Drug Enforcement Agency [sic] to verify the identity of a suspect."); ECF No. 45 at 2 ("Moreover, the affiant, here, identifies Mr. Blanks, not once or twice, but repeatedly over the course of a seven-month investigation.").) Ninth Circuit authority compels a contrary conclusion.

In Burnes , 816 F.2d at 1357-58, the Ninth Circuit found it to be simple negligence where a law enforcement agent concluded, based primarily on its shape, that a bottle carried by the defendant's associate contained ephedrine without investigating whether the bottle could have been full of some other substance. Though the affiant certainly could have done more investigatory work to discern whether the bottle did, in fact, contain ephedrine, the affidavit still withstood a Franks challenge because "the conclusion as to the contents of the bottle was made based on the observations and the combined experience of two veteran narcotics investigators." Id. at 1358. Here, Agent Anderson's repeated misidentification of Blanks as the Impala's driver was also based on conclusions derived from her own observations and from those of fellow law enforcement officers. (ECF No. 1 ¶¶ 22-24, Apr. 9, 2018.) While the surveillance team could have done more to "check[ ] or record[ ] the facts relevant to [Agent Anderson's] probable cause determination" by re-verifying its identification of Blanks every time he appeared during the team's surveillance, their failure to do so does not make Agent Anderson more reckless than the affiant in Burnes who similarly could have engaged in more investigatory spadework prior to concluding that ephedrine was probably in the bottle he observed. Burnes , 816 F.2d at 1358 (quoting Franks , 438 U.S. at 170, 98 S.Ct. 2674 ).

The Ninth Circuit's reasoning in Martinez-Garcia compels the same conclusion. It was not reckless for the affiant in that case to state that there was probable cause to believe evidence of narcotics crimes would be found at a residence, even though a known drug distributor's connection to that residence was somewhat weakened by facts suggesting he did not actually live there. Martinez-Garcia , 397 F.3d at 1215-16. The affidavit in that case was not made recklessly because the probable cause it established was based on other pieces of reliable data, such as tips from informants who had visited the residence multiple times and corroboration through official police and driving records, id. , and "[l]aw enforcement officers acting in reasonable reliance on [such information] need not track down every piece of information that might potentially be relevant before filing a warrant affidavit," id. at 1216. Thus, even if Agent Anderson harbored doubts that Blanks was the Impala's driver being surveilled by the DEA team in late 2017 and early 2018 - and there is no evidence she did have any such doubts until the warrants were executed in April 2018 (see ECF No. 43 at 2) - the fact that the team's initial identification of the driver was based on informant tips (ECF No. 1 ¶ 12, Apr. 9, 2018) and official driving records (ECF No. 1 ¶¶ 18, 23, Apr. 9, 2018) meant that the team was under no subsequent obligation to go searching for information that might undercut its initial identification, see Martinez-Garcia , 397 F.3d at 1216. Indeed, even where an affiant includes false information in an affidavit after actually doing the kind of investigative spadework that Defendants accuse Agent Anderson of failing to perform, this can nonetheless fail to demonstrate reckless disregard for the truth. See Dozier , 844 F.2d at 706 (finding that the affiant's conduct did not constitute reckless disregard for the truth even where an affidavit stated - contrary to information discovered by the affiant through a DMV check - that cars registered to drug suspects were located on the defendant's property).

Finally, the DEA investigative agents acted reasonably in this instance despite their failure to amend their identification of the Impala's driver as Blanks, and "the ultimate touchstone of the Fourth Amendment is 'reasonableness.' " Riley v. California , 573 U.S. 373, 381-82, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). Once agents made a positive identification of Blanks based on personal observation of the Impala's driver and reliable public databases (see ECF No. 1 ¶¶ 16-18, 22-24, Apr. 9, 2018), from that point forward during the investigation they referred to the individual driving the Impala as such (see, e.g. , ECF No. 1 ¶¶ 35, 37, 39, 52, 54, 67-71, Apr. 9, 2018). This is reasonable and is consistent with general law enforcement behavior. Few officers, once they identify a suspect, will reconsider their identification every subsequent time they observe the suspect absent a reason to do so. See Cameron v. Craig , 713 F.3d 1012, 1019 (9th Cir. 2013) ("Once probable cause is established, 'an officer is under no duty to investigate further or to look for additional evidence which may exculpate the accused.' " (quoting Broam v. Bogan , 320 F.3d 1023, 1032 (9th Cir. 2003) )). This is particularly true in narcotics cases where many of law enforcement's observations of their targets occur at a distance. (See, e.g. , ECF No. 1 ¶¶ 52, 70, Apr. 9, 2018.) There is a good reason why this is so: law enforcement officers are reasonably more focused on observing the suspect's actions (see, e.g. , ECF No. 1 ¶¶ 55, 57, Apr. 9, 2018) and avoiding detection (see, e.g. , ECF No. 1 ¶¶ 70-71, Apr. 9, 2018) than they are on re-checking all of their predicate conclusions made in their investigation thus far.

This, combined with the "presumption that an affidavit in support of a search warrant is valid," Meek , 366 F.3d at 716 (citing Franks , 438 U.S. at 171, 98 S.Ct. 2674 ), compels the conclusion that it was not reckless disregard for the truth characterized by a "high degree of awareness of probable falsity," Senchenko , 133 F.3d at 1158, for Agent Anderson's probable cause affidavit to repeatedly misidentify Padilla as Blanks following the events of October 25, 2017.

iii. Hessee Investigation Report

Nothing in the report from Robert Hessee (ECF No. 53-1) alters the above conclusions. The most the Hessee report establishes is the theoretical possibility that law enforcement agents may have observed the true Anthony Blanks, instead of the true Salvador Padilla who agents mistakenly thought was Blanks, driving the Impala on October 25, 2017. (ECF No. 53-1 at 1 (stating that Blanks owns the Impala in question, drove it frequently between October 2017 and March 2018, and may have driven it to the O'Reilly Auto Parts store on October 25, 2017, but cannot remember specifically whether he did so).) This report, which presumably represents Padilla's most convincing evidence that it may have actually been Blanks - not Padilla misidentified as Blanks - who agents observed on October 25, 2017 (see ECF No. 53 at 1 ("Should the Court have granted an evidentiary hearing, the defense would have sought to introduce this information [contained in the Hessee report] through witnesses."), is certainly not a "substantial" preliminary showing of reckless disregard for the truth sufficient to merit an evidentiary hearing, Franks , 438 U.S. at 155, 98 S.Ct. 2674. For as the Court previously noted, it has had ample opportunity to compare Padilla's in-court appearance with the photograph taken of Padilla inside the O'Reilly Auto Parts store on October 25, 2017 (see ECF No. 43-1 at 58), and finds that there can be no reasonable dispute that Padilla is that person. Accordingly, even if Blanks did attest that he definitely drove his Impala to the O'Reilly Auto Parts store at some point on October 25, 2017 - which, of course, Blanks does not do (ECF No. 53-1 at 1 ("Anthony does not remember the specific date that he drove the car to and from O'Reilly auto parts....")) - the Court would still find that the person agents observed engaging in activities suggestive of narcotics distribution on that date (see, e.g. , ECF No. 1 ¶¶ 20-22, 25-26, Apr. 9, 2018), and thereafter photographed inside the O'Reilly Auto Parts store (ECF No. 1 ¶ 23, Apr. 9, 2018; ECF No. 43-1 at 58), was Padilla.

Additionally, to the extent Padilla proffered the Hessee report to demonstrate that the DEA team may have unwittingly observed the true Anthony Blanks during the controlled purchases that occurred on December 4, 2017, and February 13, 2018, the report again fails to rise to the required level of being a "substantial" preliminary showing that agents' misidentification of their target on those dates was reckless. Franks , 438 U.S. at 155, 98 S.Ct. 2674. The Hessee report states that Blanks drove his Impala to "places like DMV, smog check, and does remember O'Reilly auto parts." (ECF No. 53-1 at 1.) Nowhere does Blanks suggest that on December 4, 2017, he may have driven the Impala from Padilla's residence to Romero's residence at 2930 32nd Avenue in Sacramento, to the Michoacano restaurant on Franklin Boulevard, or to the taqueria on the northwest corner of Franklin Boulevard and Fruitridge Road, each of which are locations where surveillance teams saw the Impala on that day prior to Romero selling methamphetamine to an undercover agent. (See ECF No. 1 ¶¶ 35-42, Apr. 9, 2018.) Nor does Blanks intimate that on February 13, 2018, he could have driven the Impala from Padilla's residence to any of the locations where Padilla was observed interacting with Romero or riding in Mendez's vehicle prior to another controlled methamphetamine purchase. (See ECF No. 1 ¶¶ 50, 52, 54-58, Apr. 9, 2018.) Finally, nowhere in the Hessee report does Blanks imply that he was ever at the location on Sunrise Mist Way where, on March 6, 2018, agents saw the individual they thought was Blanks allegedly attempting to hide the Impala from law enforcement surveillance. (See ECF No. 1 ¶¶ 67-71, Apr. 9, 2018.) Just because Blanks may have driven the Impala to the DMV, to get a smog test, or to O'Reilly Auto Parts over a five-month period (see ECF No. 53-1 at 1) says next to nothing about whether he may have been in the Impala on the specific days and at the specific locations set forth in Agent Anderson's probable cause affidavit.

This conclusion is underscored by the fact that the Hessee report reveals no connection between Blanks and the cellular phone numbers that Agent Anderson's affidavit connected to Romero and Padilla. (See ECF No. 53-1 at 1 ("Anthony Blanks does not know and has never heard of 'Nick Cole.' ").) These numbers were central to the affidavit's factual predicate establishing probable cause because of the frequency and temporal proximity with which they communicated with Romero while agents observed the individual they thought was Blanks coming and going from Romero's residence around the time Romero sold methamphetamine to an undercover agent. (See ECF No. 1 ¶¶ 25-26, 43-48, 81-86, Apr. 9, 2018.) That Blanks had nothing to do with these cellular phone numbers makes it even less likely - indeed, vanishingly so - that agents actually saw the true Anthony Blanks do the things that Agent Anderson's April 10 affidavit eventually attributed to the t