United States v. Kenneth Ray Matthews , 701 F. App'x 284 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH RAY MATTHEWS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:16-cr-00061-RAJ-RJK-1)
Submitted: October 31, 2017 Decided: November 15, 2017
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James O. Broccoletti, ZOBY, BROCCOLETTI & NORMILE, P.C., Norfolk, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Darryl J. Mitchell, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Kenneth Ray Matthews for conspiracy to possess
with intent to distribute and distribute cocaine, in violation of 21 U.S.C. § 846 (2012);
possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a) (2012);
and two counts of transferring a firearm to a felon, in violation of 18 U.S.C. § 922(d)
(2012). Prior to trial, Matthews moved to suppress the evidence seized during a search of
his residence pursuant to a warrant. The district court denied Matthews’ motion, and a
federal jury convicted him on the drug counts and one of the firearm counts. The court
sentenced Matthews to 144 months of imprisonment and he now appeals. Finding no
error, we affirm.
On appeal, Matthews argues that the court erred in denying his suppression
motion. Specifically, Matthews contends that the court erred in determining that the
warrant application contained sufficient probable cause once the erroneous information
that Matthews was a felon was excised from the affidavit. In addition, Matthews argues
that the information on which the court relied in determining that such probable cause
existed was too stale to demonstrate that the probable cause existed at the time that the
search warrant issued.
“We review the factual findings underlying a motion to suppress for clear error
and the district court’s legal determinations de novo.” United States v. Davis, 690 F.3d
226, 233 (4th Cir. 2012). When the district court has denied a defendant’s suppression
motion, we construe the evidence in the light most favorable to the government. Id.
“The duty of a reviewing court is simply to ensure that the magistrate had a substantial
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basis for concluding that probable cause existed.” United States v. Lull, 824 F.3d 109,
115 (4th Cir. 2016) (internal quotation marks and alterations omitted).
Where erroneous information has been included in a warrant application, we will
consider whether that information is material—i.e. whether it was necessary to the
finding of probable cause. Id. at 117. “[T]he concept of probable cause is not subject to
a precise definition.” United States v. Allen, 631 F.3d 164, 172 (4th Cir. 2011). In
making a determination of whether probable cause exists, a judicial officer must “make a
practical, commonsense 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.” Id. (internal quotation marks omitted). In making this
determination, a court should recognize that “the nexus between the place to be searched
and the items to be seized may be established by the nature of the item and the normal
inferences of where one would likely keep such evidence.” Lull, 824 F.3d at 119
(internal quotation marks omitted).
Moreover, “[a] valid search warrant may issue only upon allegations of facts so
closely related to the time of the issue of the warrant as to justify a finding of probable
cause at that time.” United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984)
(internal quotation marks omitted). “Although there is no question that time is a crucial
element of probable cause, [] the existence of probable cause cannot be determined by
simply counting the number of days between the occurrence of the facts supplied and the
issuance of the affidavit.” United States v. Richardson, 607 F.3d 357, 370 (4th Cir. 2010)
(internal quotation marks omitted). In determining whether information is stale, we “look
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to all the facts and circumstances of the case, including the nature of the unlawful activity
alleged, the length of the activity, and the nature of the property to be seized.” Id.
(internal quotation marks omitted). We have thoroughly reviewed the record and
conclude that the court did not err in determining that sufficient probable cause existed
without reference to the erroneous assertion of Matthews’ felon status at the time that the
warrant issued.
Accordingly, we affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the decisional process.
AFFIRMED
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