Page 40 - March April 2021 TPA Journal

intentionally or with reckless disregard for the game for approximately four minutes after
truth.” Finally, “if the false statement is excised, Kendrick asked Jones what he had going on during
does the remaining content in the affidavit fail to a lull in the conversation;
establish probable cause?” • May 20 call misclassifying Kendrick as the
(Ed. Note: If possible, have your warrant person near the Valero gas station, when in fact it
affidavits establish probable cause in multiple, was Jones; and
independent ways.) • Omitting social calls between Kendrick and
Kendrick contends that SA Arseneaux’s Title Jones that support the assertion that they had non
III wiretap affidavit contained false statements and drug-related communications.
material omissions that were reckless. Once these
misstatements are removed under Franks, Unchallenged Affidavit Content
Kendrick maintains that what remains in the • February 17 transaction where the informant
affidavit is SA Arseneaux’s conclusory identified Kendrick as the supplier that Jones meets
interpretations of Kendrick’s otherwise innocuous with during the drug deal;
calls and text—which are insufficient to support • May 12 events in which an unidentified
probable cause. We disagree. Probable cause still individual contacted Jones for a dime and a minute
exists even if the allegedly false statements are later, Jones contacted Kendrick to determine his
excised. location;
“Probable cause exists when there are • May 17 exchange between Jones and
reasonably trustworthy facts which, given the Kendrick in which Jones said he needed Kendrick
totality of the circumstances, are sufficient to lead which occurred five minutes after a caller asked
a prudent person to believe that the items sought Jones if he resupplied his drug inventory; and
[by the warrant] constitute fruits, instrumentalities, • May 20 text message from Jones to Kendrick
or evidence of a crime.” stating “Bring me 1” followed by them
The following table illustrates Kendrick’s coordinating a meetup location.
challenged statements in comparison to the The remaining unchallenged affidavit content,
affidavit’s remaining content: i.e., the February 17 transaction, the May 12
Alleged Falsehoods and Omissions events, the May 17 exchange and the May 20 text
• Misidentifying Kendrick as the individual message, along with the insertion of the improperly
involved in the January 2016 transaction with Jones omitted context of the May 12 and May 17 calls,
and the confidential informant, when it was in fact sets out events that SA Arseneaux believed
Carter; indicated that trafficking offenses had been
• Omitting context from the May 12 call that committed. These included Jones selling crack
Jones and Kendrick had already spoken that day cocaine and Kendrick distributing crack cocaine to
about meeting up before Jones received a request local dealers like Jones. Indeed, the affidavit’s
for narcotics, suggesting that the two had a contents undoubtedly confirm that Jones sold
legitimate reason for the call unrelated to drugs; drugs to the informant on one occasion where he
• Misclassifying a May 17, 2016 call as met with Kendrick amidst completing the drug
outgoing from Jones to Kendrick, when in fact it transaction; and when Jones needed to make local
was incoming from Kendrick to Jones; drug sales, he contacted Kendrick about
• Omitting exculpatory context from the same resupplying him and they made efforts to meet.
May 17 call in which Kendrick and Jones discussed Consequently, we find that the totality of the
non-drug-related topics including a basketball circumstances supports a probable cause finding.

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