Opinion
CR-20-2559
12-07-2021
STATE OF MAINE v. ABDIKADIR NUR
ORDER REGARDING MOTION TO SUPPRESS AND REQUEST FOR A FRANKS HEARING
By an Indictment dated April 6, 2021, Defendant Abdikadir Nur ("Nuf “) is charged with having committed the intentional or knowing murder of Hassan Hassan on October 31, 2020. On February 17, 2021, the defense filed a motion to suppress and request for a Franks hearing. In his motion, Nur alleges that the affidavits filed by the State to support the multiple search warrant requests omitted significant facts, and had those facts been included, probable cause would not have existed to grant the warrants. Hearing on Nur's motion was held on December 1, 2021. At hearing Nur submitted an offer of proof, which was supported with several pages from the discovery, to wit: (referenced by the Bates page number)-112-144, 146-150, 163, 172-173, 184, 187, 200-205, 214-212, 272-273, 459-462, 495, 529- 599, and 617, In addition, the State introduced the following exhibits:
Ex, 1- DVD containing recording of the video interview of Hamdi Mohamed conducted 11/2/2020;
Ex. 1A- Transcript of Hamdi Mohamed interview (529-599);
Ex. 2- Search warrant and affidavit for Nur DNA and prints (SW-20-185);
Ex. 3- Search warrant and affidavit for T-Mobile (SW-20-197);
Ex. 4- Search warrant and affidavit for Snap, Inc (SW-20-198);
Ex. 5- Search warrant and affidavit for Nur's iPhone (SW-20-199); and
Ex. 6- Search warrant and affidavit for Facebook and Instagram (SW-21-26).
Nur's challenge is to the search warrant requests and affidavits identified as Ex.'s 2 through 6. All of the affidavits filed in support of the search warrant requests were authored by Det. Lauren Edstrom. Nur does not allege that the affidavits contained false statements, but does assert that the affidavits failed to disclose a number of facts which Nur suggests are relevant and potentially exculpatory. The majority of undisclosed facts Nur focuses on arise from the interview of Hamdi Mohamed ("Mohamed"), and to a lesser extent from the interview of Byron Hartley ("Hartley"), as well as other miscellaneous facts obtained through the investigation. Both Mohamed and Hartley are instrumental witnesses for the State. Mohamed states she was with Hassan when he was shot, and saw Nur commit the shooting. Hartley states that on the evening of the shooting, he gave Nur and two other men a ride to the area where the shooting occurred, and that soon after Nur and one of the other men got out of his vehicle, he heard shots fired. In addition to not disclosing certain facts, Nur also argues Mohamed is not credible and her statements are unreliable.
Standard of Review
A Franks hearing is an evidentiary hearing pursuant to which a defendant is permitted to challenge the truthfulness of statements made in an affidavit to support a search warrant. State v. Dickinson, 2005 ME 100, ¶8, citing Franks v. Delaware, 438 U.S. 154, 155-156. A criminal defendant is entitled to an evidentiary hearing when he makes a substantial preliminary showing that: (1) the affidavit to obtain a warrant included intentional and knowing misstatements or misstatements made in reckless disregard for the truth, and (2) that the misstatements were necessary for a finding of probable cause. State v. Hamel, 634 A.2d 1272, 1273 (Me. 1993). The affidavits enjoy a presumption of validity, and so to make a substantial showing, a defendant's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. State v. Dickinson, 2005 ME 100, ¶8. If the defendant makes the requisite showing, he is constitutionally entitled to a Franks hearing. Franks, 438 U.S. at 156.
The substantial preliminary showing the defendant must make is in the nature of an offer of proof. State v. Thompson, 2017 ME 13, ¶ 21. The preliminary inquiry requires the court to consider the warrant affidavit and the defendant's written submissions. State v. Dickinson, 2005 ME 100, ¶19. Unless their absence is explained, the defendant's challenge should be supported by affidavits or sworn or otherwise reliable statements of witnesses State v. Van Sickle, 580 A.2d 691, 693 (Me. 1990); Franks v. Delaware, 438 U.S. at 171. The defendant must also show that the information at issue is material, meaning necessary, to the finding of probable cause, and that the affiant included the false information knowingly or with reckless disregard as to its falsity. Id. But even if the defendant does make the required showing, he is still not entitled to an evidentiary hearing, if, after excision of all the false information from the search warrant affidavit, there remains probable cause for the warrant. Id., Franks, 438 U.S. at 171-172.
Discussion
As previously indicated, the majority of misstatements or omissions in the search warrant affidavits that Nur takes issue with involve statements made by Mohamed. Mohamed was interviewed by Detectives Jennifer King and Ethel Ross on November 2, 2020. All of the search warrants at issue state the following (paragraph numbers are not included as the two paragraphs were numbered in slightly different orders in the various affidavits):
In his original motion filed February 17, 2021, Nur also asserted that the search warrant affidavits failed to disclose that Nur's name had not been crossed off the Covid contract tracing list at a Portland night club, suggesting he had been present when an unrelated shooting occurred. But at hearing Nur's counsel indicated that challenge was no longer being made. Indeed, these references in the affidavits appear instead to lay out how the State's investigation led them to Byron Hartley.
On 11/2/20, Detectives Jennifer King and Ethel Ross interviewed Hamdi Muhamed, dob 1/1/03 of Lewistion. Muhamed showed Det. King a photograph she had of Nur on her cellphone. It was a photo of Nur from a Lewiston Police Press release regarding a shooting in May 2020 that Det. Wiers investigated. She identified the male in the photo as "Polo". Muhamed shared that sometime between January and March of 2020 "Polo" hit her over the head in an attempt to sexually assault her. She was able to get away before any assault. Also during that time frame she admits to setting "Polo" up to have his iPhone stolen. She believed that "Polo" has been after that time and she believed he was coming after her on 10/31/20 when she saw him on River Street at the time of the shooting.
On 10/31/20, Muhamed said that she was in a Uhaul pickup truck with Hassan (known by the street name "Gunna"), Hussein Werdi, Abdirizak Mohamed Hassan (known by the street name "Blackie"), and Abdi Hassan Yusuf (known by the street name "White Boy") on River Street. They were parked in front of Yusuf's apartment and were there to drop him off. Muhamed observed a vehicle in the area and identified Abdikadir Nur as a passenger in the vehicle. She knows him by the name "Polo". She said she witnessed "Polo", wearing all black, get out of the vehicle with a gun. Hassan got out of the truck and had a bat in his hand. She witnessed Hassan throw the bat at "Polo" causing "Polo" to drop his gun. She the witnessed "Polo" pick up his gun and shoot Hassan. She heard Hassan yell, "My leg!" then run in the direction of Cedar Street. She said "Polo" ran off.
In his offer of proof, Nur asserts the following should have been included in the affidavits when summarizing Mohamed's interview:
-that in addition to his wearing all black clothing, Nur was also wearing a black Luis Vitton face mask (Offer of Proof, ¶3);
-that someone in the vehicle that she and the victim were in fired a gun at or about the same time that Nur fired, and that another guy who was with Nur had also been shot but did not go to the hospital (Offer of Proof, ¶6 and 8);
-that during the interview Mohamed purposely withheld information from the detectives, and when pressed her response was she didn't want people on her "side" to get in trouble; and she was also reluctant to identify the shooter in her car (Offer of Proof, ¶9);
-when she identified the shooter in her car as "Blackie", Mohamed expressed concern she would be considered a snitch, and that she refused to tell the detectives Blackie's real name or phone number (Offer of Proof, ¶10 and 11);
-Mohamed refused to give the detectives her phone to do a forensic analysis (Offer of Proof, ¶12); -Mohamed was evasive about providing details about the rented Uhaul tmck(Offer of Proof, ¶14);
Nur's argument regarding the Mohamed interview is not only were a number of details from her interview not included in the search warrant affidavits, but also that her statements were inconsistent and not reliable. He asserts had all of this information been included in the affidavits, search warrants would not have been issued.
As previously stated, even if the defendant makes the required showing, he is still not entitled to an evidentiary hearing, if, after excision of all the false information from the search warrant affidavit, there remains probable cause for the warrant. State v. Van Sickle, 580 A.2d at 693, Franks, 438 U.S. at 171-172. This case is slightly different in that Nur does not ask for excision of false information. Instead, he asks the court to supplant the affidavits with the allegedly missing information, and then consider whether probable cause still exists.
Probable cause is established when given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Rabon, 2007 ME 113, ¶22. The probable cause standard is flexible and based on common sense. State v. Flint, 2011 ME 20, ¶12; see Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535 (1983). Although requiring more than mere suspicion, probable cause can be satisfied on less than the quantum of proof necessary to establish a fact by a fair preponderance of the evidence. Id., see also State v. Lux, 1999 ME 136, ¶10.
With those principles in mind, the court will compare what Mohamed stated at her interview to what was provided in the search warrant affidavits. Again, Nur does not allege any misstatements of facts, only omissions. So, there are no facts in the affidavits to excise as false. Nur asks the court to find that had these additional facts all been included in the affidavits, probable cause would not have been established.
In addition to reviewing the transcript of Mohamed's interview (529-599), the court has also viewed the video recording. (Ex. 1). To begin with, what is patently clear from reading the transcript and watching the video recording of the interview is that Mohamed was genuinely afraid of Nur and of being hurt. In the video she is visibly uncomfortable sharing details. (Ex. 1). Mohamed disclosed prior encounters with Nur where he attempted to rape her. (541- 542, 564-565). Mohamed was afraid of being hurt by Nur (569-572), she didn't want to die (539), and also afraid that he would not be held in jail as he had just recently been released on bail. (533) Mohamed was also afraid of being seen as a snitch. (586) Although not necessarily the same as making a statement against penal interest (see State v. Arbour, 2016 ME 126, ¶6), Mohamed did make statements that she percieved compromised her well being. This tends to bolster her credibility.
Nur is correct that Mohamed was initially reluctant to provide a number of details, and some details such as Blackie's real name and phone number, she never did reveal. But by the conclusion of the interview, she had told the detectives the street names of all of the people she was with when Hassan was shot, including "Werdi", "Blackie" and "White Boy". Again, viewing Mohamed's interview in its entirety, her hesitation and reluctance seems genuinely driven out of concern for her safety and not wanting to be a snitch.
Nur's primary attack on the affidavits is the affiant's failure to include that Mohamed stated Nur was wearing a face mask. The affidavits state "She said she witnessed "Polo", wearing all black, get out of the vehicle with a gun." Nur asserts that had the affidavit included the detail Nur was also wearing a black face mask, doubt would have been raised as to Mohamed's ability to identify the shooter. The court disagrees.
After calling the police barracks, Mohamed voluntarily sat for an interview with the detectives. Almost immediately after arriving for the interview, Mohamed showed the detectives a picture of Nur she had on her phone, and told them this was the guy who shot Hassan, and she saw it with her own eyes. (532-533). She stated several times she saw the shooting, and was sure the person was Nur. (539, 544, 554-555). Mohamed did state when she first saw Nur get out from the car behind them, he was wearing a mask and all black clothing. (538-539). But she also described how she knew Polo (539, 542-544, 550, 564-565) and that she could recognize him with or without a mask. (539). And more importantly, she stated Nur's mask fell off. (539)
Nur asserts all of these details should have been included in the affidavit. Assuming for argument they should have been, the affidavit would have then read something along the lines of "She said she witnessed "Polo", wearing all black and a face mask, get out of the vehicle with a gun. She stated that she could recognize it was Polo with or without a face mask because she knows him very well, and the mask fell off". Again, although more than mere suspicion is required, probable cause can be satisfied on less than the quantum of proof necessary to establish a fact by a fair preponderance of the evidence. State v. Lux, 1999 ME 136, ¶10. The court finds that had these details been included, a fair probability would still exist that Mohamed saw and identified Nur as the shooter.
The court will next address the issue of Mohamed's credibility. The purpose of a Franks hearing is to challenge the truthfulness of statements made in an affidavit in support of a warrant. State v. Boutilier, 2011 ME 17, ¶15. When reviewing an affidavit, probable cause is established when, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is fair probability that contraband or evidence of a crime will be found. State v. Rabon, 2007 ME 113, ¶22. When the affidavit relies on information by an informant, the veracity and basis of knowledge of the informant are considerations that should not be understood as entirely separate and independent, but rather understood as closely intertwined issues that may illuminate the question of probable cause. Rabon, ¶23, citing State v. Knowlton, 489 A.2d 529, 531 (Me. 1985) and Illinois v. Gates, 462 U.S. 213, 230 (1983). Corroboration enhances the credibility of information from informants that is presented in a search warrant. State v. Perrigo, 640 A.2d 1074, 1076 (Me. 1994) "It is enough, for purposes of assessing probable cause, that corroboration through other sources of information reduced the chance of a reckless or prevaricating tale, thus providing a substantial basis for crediting the hearsay. Rabon, ¶ 24, quoting Gates, at 244-45.
Corroboration has occurred in this case with respect to Mohamed's statements. Mohamed accurately stated the location of the shooting the police were investigating as River Street, in the area of Lincoln Street. (536). Mohamed stated the shooter had arrived in a gray Nissan. (535). From city pole cameras, police were looking for a black Nissan (Ex. 2, ¶ 2), and Byron Hartley told police he drove Nur and two others to the scene in his black Nissan. Mohamed stated the driver of the Nissan was white. (540). Byron Hartley, who was the driver of the Nissan on the night of the shooting, is white. Mohamed ultimately stated the others in the Nissan besides Nur and the white man driving were "Santana" and another black man, "TI" or "BENDO". (550-551, 540). Hartley told police the men he gave a ride to the location of the shooting were Meech, who is also known as "Santana", and two other Somalian males, who he ultimately identified as Nur ("Larry") and "TI". (Ex. 2, introduction to affidavit, and ¶ 13). Mohamed told the police that she and Hassan were in a rented U-Haul pickup. (538) Police confirmed that one of the men with Mohamed, "Blackie", had rented a U-Haul pick up on October 31, 2020. (Ex. 3, ¶ 26). Mohamed told police that when the shooting occurred, Hassan said "Ow, my leg" (537). Hassan died of a gunshot wound to his leg. Mohamed told the police that prior to the shooting, these two groups had been smashing each other's vehicles. (557J. Police had in fact received complaints of criminal mischief and damage to Hassan's family vehicle and Nur's mother's vehicle. (Ex. 2, ¶6, 7). Mohamed told police Nur was wearing all black. Byron Hartley also told police Larry (Nur) was wearing all black. (141). In addition, after the shooting, Hartley was asked to throw a bag away in his dumpster, which was found to have a black hoodie and black jogging pants. (Ex. 3, ¶ 12) Mohamed told police that after Nur shot Hassan, "Blackie" from her vehicle fired a shot. (568) This is consistent with the police investigation that two guns were involved and two types of casings were found at the scene. (Ex. 1, ¶4). This is just a sample of evidence and information collected by the police that corroborates what Mohamed told the detectives.
One of Nur's complaints is that the affidavit did not disclose Hartley's statement that Nur was wearing a striped shirt. (Offer of Proof, ¶ 7). What Hartley stated was "I think Larry had on like a striped shirt. I can't be positive.. .Darker? I think they were all dressed in darker clothes". The affidavit not including Nur may have been wearing a striped shirt is not a factor in assessing probable cause.
As for Mohamed's statement that she saw Nur shoot Hassan, that identification is also partially corroborated. Mohamed's description of the size of Nur was consistent with the description Hartley gave police. (559, 121). Both Mohamed and Hartley accurately described Nur as just having been released from jail. (138, 533, Ex. 2, ¶ 9). Hartley told police that after driving to the area of the scene of the shooting, Nur (Larry) and TI got out of his vehicle and he soon heard shots fired, (Ex. 1, ¶ 13) and TI returned to the vehicle, and Nur was picked up in Lewiston. Hartley heard Meech, TI and Nur say "one down". (Ex. 1, ¶13, 15). Although Hartley's statement leaves open the possibility it was TI who shot Hassan, it still provides corroboration by placing Nur directly at the scene.
As discussed, Nur does not claim any statements in the affidavits are false, and as written the affidavits establish sufficient probable cause. Nur's argument is had all of this additional information been provided in the affidavits, there would not have been probable cause. The court disagrees. As laid out above, after supplanting the affidavits with the additional facts, probable cause exists. And Mohamed's statements are corroborated by the other information available and set forth in the affidavits.
The court will now address the remaining challenges raised by Nur. Nur asserts the affidavits should have disclosed that a Halloween chimpanzee mask was found at the scene which was different from the Luis Vitton mask Mohamed described. (Offer of Proof, ¶4). At the time the affidavits were written, the Halloween mask had not been directly connected to either Nur or Hassan. Mohamed never saw a Halloween mask. (575). And Hartley never saw masks of any type. (141). The Halloween mask neither adds nor deducts from probable cause. Having already addressed the issue of the affidavit not disclosing Mohamed saw Nur wearing a face mask, the court discerns no effect from not including in the affidavit the detail of finding a Halloween mask at the scene.
Nur also complains that the affidavit failed to include the detail that Mohamed told the detectives that Blackie, from her vehicle, also fired a gun at the time Hassan was shot. First of all, the affidavits do disclose that two types of shell casings were found at the scene, meaning two firearms were involved. (Ex. 2, ¶ 4). But to be focused, the purpose of the search warrants was to find evidence related to identifying who shot Hassan. Although "Blackie" may have fired his gun, there is no suggestion he shot Hassan, and Mohamed made it clear in her statement to the detectives that Nur shot first, and shot Hassan. That Blackie fired his gun will be relevant at trial. But it is not a fact that was needed in the affidavits. And had it been included, it would in no way have impacted or impaired the finding of probable cause.
Similarly, Nur complains the affidavit failed to include that Mohamed stated "I think he got shot in the truck." (Offer of Proof, ¶ 13). The affidavits, as written, are not inaccurate, as they set forth what Mohamed initially told the detectives. (534, 537, 546-549, 560). It was only later in the interview that Mohamed stated she was unsure whether Hassan was shot while he was running away, or while he was still in the vehicle. (561 J. But Mohamed never waivered in her statement that Nur arrived, got out of the vehicle he was in, Hassan threw a bat at Nur, Nur shot Hassan in the leg, and then Hassan ran away. The lack of clarity of whether Hassan was in or out of the vehicle, although relevant at trial, does not impair the finding of probable cause.
Another complaint by Nur is the affidavit did not disclose that a list of guests at the Clarion Hotel in Portland on the evening of October 31, 2020 did not include Nur, Meech, or TI, contrary to Hartley's statement that he took the three of them there that evening after the shooting. (Offer of Proof, ¶ 16). It is accurate that Nur, Meech and TI are not on the guest list at the Clarion. (146-150). But this is not in contradiction to Hartley's statement. The affidavits state that Hartley told the police he gave Nur, Meech and TI a ride to the Clarion, where they met with some females, and one of the females who went by "K" reserved the room. (Ex. 3, ¶20). Nur's name would not be on the guest list.
Nur also claims the affidavits are deficient for not disclosing that Lewiston and Auburn police know of Nur by the alias "Polo", but not by the alias "Larry". (Offer of Proof, ¶17). Apparently, Nur is commonly known by the alias "Polo", including by local police. Mohamed also knew Nur by "Polo", as clearly disclosed in the affidavits. And the affidavits indicate many of the other individuals who were interviewed knew Nur as "Polo". Meanwhile, Hartley knew Nur as "Larry", which also was fully disclosed in the affidavits. So, the affidavits did not conceal the fact that two key witnesses, Mohamed and Hartley, knew Nur by different aliases. What's interesting is one of Nur's friends that he was with the evening of the shooting, Issak Aliyow, aka "TI", also knew Nur by "Larry". (Ex. 3, ¶29). That Lewiston and Auburn police did not yet know Nur by this additional alias does not impact probable cause. Again, the affidavits fairly disclosed Mohamed knew Nur as "Polo", and Hartley knew Nur as "Larry", so these facts were before the judge reviewing the affidavits.
Finally, Nur complains that the affidavits did not disclose that Hartley told the police that he knew TI had a gun. (Offer of Proof, ¶18). The court feels Nur may have read this statement out of context. The following are the officer's questions and Hartley's responses regarding firearms:
(120)
Q: ..did you see any of them have firearms before or after?"
H: No, I did not.
Q: At any time?
H: Honestly, all I heard was gun shots and he told me that was them.
(138)
H: When they got in the car, they never showed any guns.
The statement by Hartley that Nur points to was made at a different time in the interview when Hartley was explaining where Meech and TI could be found. Hartley said he could point out the location to the officer while driving to the station, and he then said "I know TI, was one of the guys with a gun." (725}. In this context the court does not discern that Hartley was stating that TI was the one with gun, but rather was stating that TI was one of the people of this group who may have had the gun. There is absolutely nothing from Hartley's statement that suggests he saw or knew TI had a gun in his possession.
In conclusion, the statements in the affidavits are not inaccurate per se, and as written, clearly provide probable cause to issue the search warrants. Nur seems to concede that point. His contention is the affidavits intentionally or knowingly misstated the facts, or recklessly disregarded the truth, by failing to include a number of details that had they been included, would have caused the judge to decline the warrant requests. Of the list of missing details complained of by Nur, the one detail the court agrees should have been included is Mohamed's statement that when she first saw Nur he was wearing a face mask. That is a detail that ought to have been included in the affidavits. But given that Mohamed unequivocally told the detectives that she saw Nur, that she could identify him with or without a mask, and that his mask fell off, the court does not find this omission to be either an intentional or knowing misstatement, nor a statement made with a reckless disregard for the truth. State v. Dickinson, 2005 ME 100, 5J8, citing Franks v. Delaware, 438 U.S. 154, 155-156. At best, the omission was made negligently, likely due to haste. But as already discussed, even if the omission had been done intentionally or knowingly, Nur would still not be entitled to the relief requested. If the detail that Nur was wearing a mask was included, a fair probability still exists that Mohamed saw and identified Nur as the shooter, and probable cause to issue the search warrant remains. As for Nur's remaining challenges, none of them impair the finding of probable cause.
Accordingly, Nur's motion to suppress and motion for a Franks hearing are both DENIED.