United States v. Gerard Epps , 467 F. App'x 184 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4334
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERARD MAURICE EPPS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00407-RDB-1)
Submitted: January 26, 2012 Decided: February 24, 2012
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary A. Ticknor, Elkridge, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, John W. Sippel, Jr.,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerard Maurice Epps pled guilty pursuant to a
conditional plea agreement to one count of being a convicted
felon in possession of a firearm and ammunition, in violation of
18 U.S.C. § 922(g)(1) (2006). Epps appeals the district court’s
order denying his motions to suppress the direct and derivative
products of a search, conducted pursuant to a warrant, of a
residence from which Epps was suspected of distributing crack
cocaine. We affirm.
We consider first Epps’ contention that the district
court erred in denying his request for a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). We review de novo the
legal determinations underlying a district court’s denial of a
Franks hearing, while its factual findings are reviewed for
clear error. United States v. Allen, 631 F.3d 164, 171 (4th
Cir. 2011). The purpose of a Franks hearing is to determine
whether, but for the inclusion of intentional or reckless
misstatements by the affiant, an affidavit would not support a
finding of probable cause. United States v. Clenney, 631 F.3d
658, 663 (4th Cir. 2011). “Allegations of negligence or
innocent mistake are insufficient” to warrant a Franks hearing.
United States v. Tate, 524 F.3d 449, 454 (4th Cir. 2008)
(internal quotation marks omitted). When, as here, a defendant
bases his request for a Franks hearing on alleged omissions,
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rather than a “false affirmative statement,” his burden
increases. Id. A defendant who alleges intentional or reckless
omissions “is required to make a substantial preliminary showing
that [the affiant] omitted material facts that when included
would defeat a probable cause showing.” Id. at 455 (internal
quotation marks and citation omitted); see also United States v.
Colkley, 899 F.2d 297, 301 (4th Cir. 1990).
Here, although claiming recklessness in the district
court, Epps offered only conjecture regarding what information
the affiant officer might have omitted from the affidavit, thus
falling far short of making a “substantial preliminary showing.”
Id. Furthermore, Epps failed to specifically indicate how any
of the alleged omissions would have defeated a finding of
probable cause. See Colkley, 899 F.2d at 301. Accordingly, we
find that the district court did not err in denying Epps’
request for a Franks hearing.
We turn next to Epps’ contention that the district
court erred in holding that probable cause supported the warrant
and that, in the alternative, the good faith exception to the
exclusionary rule, articulated in United States v. Leon, 468
U.S. 897 (1984), was applicable. We exercise our discretion to
forgo discussing the validity of the search warrant and proceed
directly to the applicability of the good faith exception.
United States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009). We
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review de novo the district court’s legal conclusions and its
factual findings for clear error. United States v. Guijon-
Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). We construe the
evidence in the light most favorable to the Government, the
prevailing party below. United States v. Perkins, 363 F.3d 317,
320 (4th Cir. 2004).
Pursuant to the good faith exception, when an officer
acts “with objective good faith within the scope of a search
warrant issued by a magistrate,” suppression of the evidence
obtained by the officer does not serve the exclusionary rule’s
deterrence objective. United States v. Perez, 393 F.3d 457, 461
(4th Cir. 2004) (internal quotation marks omitted). “Usually, a
warrant issued by a magistrate suffices to establish that a law
enforcement officer has acted in good faith in conducting the
search.” United States v. Doyle, 650 F.3d 460, 467 (4th Cir.
2011) (internal quotation marks and alteration omitted).
However, an officer’s reliance on a warrant is not
objectively reasonable if:
(1) the magistrate or judge was misled by information
in an affidavit that the affiant knew was false or
would have known was false but for his reckless
disregard of the truth;
(2) the magistrate wholly abandoned the role of a
detached and neutral decision maker;
(3) the affidavit supporting the warrant is so lacking
in indicia of probable cause as to render the
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officer’s belief in its existence totally
unreasonable; or
(4) the warrant is so facially deficient, by failing
to particularize the place to be searched or the
things to be seized, that the executing officers
cannot reasonably presume it to be valid.
Id. at 467-70. Epps’ arguments on appeal focus on the second
and third scenarios. Because Epps contends that the state judge
acted as a “rubber stamp” by issuing the warrant based on an
inadequate affidavit and also alleges that the affidavit
contained insufficient information to warrant reasonable
reliance by an executing officer, his claims are most
appropriately analyzed solely under the third exception. See
United States v. Wellman, 663 F.3d 224, 229 (4th Cir. 2011);
Doyle, 650 F.3d at 470.
In United States v. Wilhelm, 80 F.3d 116 (4th Cir.
1996), we found unreasonable an officer’s reliance on the
warrant at issue due to the “bare bones nature of the affidavit”
and the fact that the “state magistrate could not have acted as
other than a rubber stamp in approving such an affidavit.” Id.
at 121 (internal quotation marks omitted). Epps’ attempt to
draw a connection between Wilhelm and the facts of his case is
unavailing.
Here, the affidavit in question was far more detailed
and information-rich than the affidavit we considered in
Wilhelm. More importantly, unlike in Wilhelm, the affidavit
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indicated that the affiant officer corroborated, through
independent investigation, a significant portion of the detailed
information supplied by the informant. Id. at 121-23.
Therefore, we conclude that the affidavit warranted a reasonable
officer’s belief that it supported probable cause. Moreover,
given that the contents of the affidavit alone supported this
conclusion by the district court, we hold that the denial of
Epps’ request to question the affiant officer during the
suppression hearing was not an abuse of discretion. See United
States v. Rooks, 596 F.3d 204, 209-10 (4th Cir.) (noting abuse
of discretion standard of review governs evidentiary rulings in
suppression hearing), cert. denied, 131 S. Ct. 148 (2010).
Accordingly, we affirm the judgment below. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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