Page 36 - TPA Journal July-August 2025

[Donovan] ‘needed to make a “substantial prelim- and June 30 wiretap orders would have recorded
inary showing” that the affiant[’s] statements were calls that occurred on those dates. Therefore, we
deliberately false or made with reckless disregard only consider challenged statements that appear in
for the truth.’” Although Franks concerned search the affidavit underlying the June 30 order, since
warrants, we have previously considered whether there are no allegations regarding the May 20
a Franks hearing was merited to determine the order. In reviewing the district court’s denial of a
veracity of an affidavit supporting an application Franks hearing when there has been no determina-
for a Title III wiretap. “To resolve a challenge to tion regarding the truth or falsity of alleged mis-
an affidavit’s veracity,” we “first determine if it statements, we have previously reviewed the affi-
contains a false statement or material omission,” davits as if the challenged statements were not
and if it does, we then “decide whether ‘the false present to see whether “[p]robable cause still
statement [or omission was] made intentionally or exists even if the allegedly false statements are
with reckless disregard for the truth.’” Lastly, we excised.”
ask, “if the false statement is excised, does the In the district court, the defendants argued that the
remaining content in the affidavit fail to establish affidavit underlying the June 30 order contained
probable cause?” (timeliness comments omitted.) three allegedly false statements: (1) that agents
made a “‘controlled delivery’ of a package con-
Regarding the merits, Donovan does not identify taining 13 pounds of methamphetamine and one
on appeal which statements in the affidavits were pound of marijuana”; (2) that “the ‘controlled
“deliberately false or made with reckless disregard delivery’ was addressed to ‘a non-existent resi-
for the truth.” Instead, he cites to the memoran- dence on Tamola Road’”; and (3) that Rondarius
dum in support of the motion to suppress submit- Gowdy, the man arrested while transporting the
ted to the district court and argues that the package, “stated to officers that [he] was paid
Government did not dispute the alleged misrepre- $500.00 to deliver the package to Cordarryl [sic]
sentations but rather “attempted to justify the affi- [Ford] and that Gowdy provided officers the tele-
ant’s action.” Therefore, we have analyzed the fil- phone number for [] Ford.”
ings submitted to the district court. Even without those statements, the affidavit con-
Before the district court, the defendants made no tains information to establish probable cause that
“substantial preliminary showing” of any alleged Donovan was participating in a conspiracy to dis-
falsehoods in the affidavit supporting the May 20, tribute methamphetamine. The affidavit recounts:
2020 intercept order. Though the memorandum at (1) confidential informants had purchased
law mentioned that order, it only discussed methamphetamine from Donovan on five separate
allegedly false statements in the affidavits support- occasions in January and February 2020; (2)
ing the June 22, 2020 order and the June 30, 2020 Donovan had a phone conversation in mid-May
order. Additionally, only Donovan challenges 2020 in which he told the caller that he had “ten
probable cause in the affidavits on appeal, and he thousand . . . eleven thousand on [him]” but that if
was found guilty of partaking in two conspiracies, the caller could not “do it all, then just give
the first “beginning in May 2020, and continuing [Donovan] what” he could, and the affiant inter-
to on or about May 29, 2020,” and the second preted this conversation as Donovan having ten
“beginning on or about July 6, 2020, and continu- thousand or eleven thousand dollars in cash and
ing to on or about July 10, 2020.” He does not wanting to purchase as much methamphetamine
challenge any sentencing enhancement pertaining as the caller could sell him; (3) Donovan had a
to relevant conduct that occurred outside of those separate call with the same caller later that day
dates. Therefore, all wiretapped calls pertaining to that the affiant interpreted as the caller telling
those time frames would have occurred either in Donovan that he was about to sell his last four
May 2020 or in early July 2020. Only the May 20 ounces of methamphetamine; (4) agents intercept-

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