On July 19th, 2021 the Honorable Judge Suzan Baucum denied two motions filed by Zaon Collins’ attorneys. One motion concerned suppressing the blood draw that was obtained via search warrant to show Mr. Collins was under the influence while driving. The second motion concerned procedural issues related to grand juries. We will only be looking at the first motion for today’s blog. We’ll focus on three things:
- Mr. Collins’ Case history
- An explanation of Franks vs. Delaware
- Analysis of Judge Baucum’s Ruling
Zaon Collins: A Tragic Accident, A Contentious Court Case
On the afternoon of December 30th, 2020 a Dodge Charger being driven by Mr. Collins struck a Hyundai Accent. The airbag control module later determined that the Dodge Charger was traveling at 88 miles per hour in a 35 mile per hour zone. The driver of the Hyundai Accent, Mr. Echaverria, was transported to Sunrise Hospital and Medical Center. He passed away, with the Clark County Coroner’s Office stating that he died of blunt force injuries.
Mr. Collins, a Las Vegas native, was slated to begin playing basketball at UNLV in the 2021-2022 school year as a freshman. He was ranked 42nd in the nation as a top recruit and heralded as the beginning of a turnaround of the UNLV basketball program. He turned down offers from Arizona, USC, and Arizona State to remain in his hometown at UNLV. Five days after the fatal crash, UNLV announced that Mr. Collins would not be joining them for the 2021-2022 school year.
At the scene of the crash, police officers located a green leafy substance consistent with marijuana. Additionally, Mr. Collins reportedly had watery, bloodshot eyes and had a lack of convergence in his eyes as well as eyelid tremors. Armed with these facts, the police requested a warrant to withdraw blood from Mr. Collins. That blood result put him at 3 ng/ml of marijuana in his system. The limit for a per se violation of marijuana at the time of the crash was 2 ng/ml.
The District Attorney elected to take Mr. Collins’ case to the grand jury instead of going through with a preliminary hearing. The problem: the grand jury refused to indict Mr. Collins for a DUI resulting in substantial bodily harm. Instead, they charged him with reckless driving. The District Attorney voluntarily dismissed the case and returned to the justice court to pursue the DUI resulting in substantial bodily harm via a preliminary hearing.
Prior to the preliminary hearing, Mr. Collins’ attorneys filed a motion to suppress the blood test results. Relying on Franks v. Delaware, they argued that officers intentionally omitted exculpatory information and made verifiably false statements under oath. As such, the entire affidavit should be tossed, and the blood test suppressed due to a Fourth Amendment violation. The Honorable Judge Baucum, who presides over department 13 where DUIs are generally heard when first charged, denied the motion. As of now, an appeal has been filed challenging the decision.
Franks V. Delaware
Franks v. Delaware is an interesting case in the United States Supreme Court jurisprudence. In 1978, It created an avenue for suppressing evidence that was collected as the result of intentional or wanton disregard for the truth statements made by officers applying for search warrants. It has not been substantively visited or revised by the US Supreme Court since.
Franks dealt with the possibility that police officers might be giving false information to police officers to obtain search warrants. According to the United States Constitution’s warrant clause, a warrant can only be issued if there is probable cause and it is supported by an “oath or affirmation.” That oath or affirmation is then supposed to be weighed by a disinterested magistrate who will either issue the warrant or deny it.
In Franks, a man was arrested for rape based on a description provided by the victim. A warrant was obtained to search his house based on that description where the officer affirmatively represented that he spoke with Franks’ coworkers and they corroborated the clothes and appearance. Franks’ attorney attempted to suppress and was prepared to call the coworkers to confirm that no such conversation took place between that officer and them, and the conversation they did have was not related to his clothes. Mr. Franks was convicted, and he appealed to the US Supreme Court.
The Supreme Court held that searches as a result of affirmative misrepresentations can be suppressed. However, it created a fairly high bar for anybody seeking that remedy, stating:
There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false, and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and 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.
In essence, to simply earn a hearing to determine if there should be suppression, a defense counsel must do two things:
- Provide proof that there are material falsehoods that were either intentional or recklessly false; and,
- Once those statements are removed, show that probable cause is lacking
A tall order indeed.
Judge Baucum’s Ruling: According To The Law
Judge Baucum, true to her character in my experience, issued a thorough. brief, and on-point order entirely in line with Franks. The order – with an analysis section spanning a mere three pages – touched on both requirements to earn an evidentiary hearing. First, she pointed out there was no offer of proof to show that either the officers were lying or were completely closing their eyes to the truth. This alone would be fatal; however, the court took it to the next step anyway, striking the relevant portions highlighted by Collins’ lawyer and finding there was still probable cause. The motion to suppress was denied.
Judge Baucum’s order was correct. Based on the order and the facts highlighted, the State has a serious problem with their case; however, a Franks challenge is not going to get this done. As a Las Vegas DUI Lawyer, seeing the representations by the officers for impairment are fairly run of the mill. Watery, bloodshot eyes and marijuana in the car in conjunction with a deadly crash will most certainly result in a warrant being requested and granted. Moreover, the failure to show impairment with HGN is an alcohol-specific impairment indicator. It cannot predict marijuana impairment! The officers’ affirmations concerning the Lack of Convergence test and eyelid tremors are dubious at best, but most judges accept them as valid methods for testing for impairment. Put it all together, and we have an officer who was using dubious testing methods, but 100% believing that he was acting in good faith! There is no proof that he didn’t know that the LOC and eyelid tremor tests weren’t that great at predicting impairment, especially because they are often taught in academies as ways to identify impairment via drugs. Second, removing all of those affirmative affirmations, a fatal accident, and marijuana in the vehicle with bloodshot eyes will most certainly meet probable cause that an individual was impaired. The Franks challenge didn’t stand much of a chance.
DUI Lawyer In Las Vegas
There are several ways to attack DUIs resulting in death or substantial bodily harm. Especially in this case. If you’re facing these types of charges, call Goodwin Law Group, PLLC. As an experienced Las Vegas DUI attorney I can help you fight the charges you are facing.