United States v. Ross , 400 F. App'x 730 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4660
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT NICHOLAS ROSS,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00019-JPB-DJJ-1)
Argued: September 24, 2010 Decided: November 5, 2010
Before TRAXLER, Chief Judge, KING, Circuit Judge, and Jerome B.
FRIEDMAN, United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Barry Philip Beck, POWER, BECK & MATZUREFF,
Martinsburg, West Virginia, for Appellant. Erin K. Reisenweber,
OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee. ON BRIEF: Betsy C. Jividen, Acting
United States Attorney, Wheeling, West Virginia, Paul T.
Camilletti, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Defendant Robert Nicholas Ross appeals his conviction in
the Northern District of West Virginia for being a felon in
possession of multiple firearms, in contravention of 18 U.S.C.
§ 922(g)(1). On appeal, Ross maintains that the firearm
evidence used against him should have been suppressed because
the underlying search warrant affidavit knowingly,
intentionally, and recklessly contained false statements that
were necessary to establish probable cause. The district court,
after an evidentiary hearing conducted pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), declined to suppress the
firearms. Ross thereafter pleaded guilty to the indictment,
reserving his right to appeal the suppression ruling. As
explained below, we affirm.
I.
A.
On March 18, 2008, a grand jury in the Northern District of
West Virginia returned an indictment against defendant Ross,
alleging that he had three previous felony convictions for
burglary under Maryland law. The indictment then alleged that
Ross had “knowingly possessed in and affecting interstate
commerce” three firearms, that is, a 12 gauge shotgun, a 30-06
rifle, and a .38 caliber revolver, in contravention of 18 U.S.C.
3
§ 922(g)(1). See J.A. 11-12. 1 These firearms had been seized in
June 2007 during a warranted search of Ross’s residence. After
unsuccessfully challenging the seizures on Fourth Amendment
grounds in the district court, Ross entered his conditional
guilty plea to the indictment, pursuant to Rule 11(a)(2) of the
Federal Rules of Criminal Procedure. 2
The events leading to the search of Ross’s residence
provide the factual predicate for this appeal. 3 Those events
began at about 6:40 on the evening of June 12, 2007, when an
injured man covered in blood — later identified as George Holmes
— came to Deborah Breeden’s home in a subdivision near Charles
Town, West Virginia. 4 Breeden called 911 and her medical
1
Citations herein to “J.A __” refer to the Joint Appendix
filed by the parties in this appeal.
2
The appeal reservation aspect of the plea agreement
provided in relevant part that
[t]his is a conditional plea within the meaning of
Rule 11(a)(2). The defendant, Robert Ross[,] reserves
the right to appeal the adverse ruling [on] his Motion
to suppress evidence . . . . The parties agree that
the issue preserved for appeal is fully case
dispositive.
J.A. 170.
3
The facts spelled out herein were either found by the
magistrate judge and district court or are not disputed.
4
The injured man initially gave several false names —
including Jonathan Ross and George Ross — to Breeden and the
first responders. During the events of June 12, 2007, it was
(Continued)
4
examiner neighbor, Candy Shirley, seeking assistance. In
response, the 911 dispatcher sent an ambulance to Breeden’s home
and notified the West Virginia State Police.
Shirley promptly arrived at Breeden’s home and began to
treat Holmes’s injuries, attempting to abate the blood loss from
lacerations on his arm. Holmes appeared to be intoxicated and
initially claimed that he had injured himself by falling in the
woods. Although Breeden and Shirley both advised Holmes that he
could not have sustained his wounds from a fall, he stood by his
story.
Shortly after this exchange, at about 7:00 p.m., an
ambulance and two paramedics arrived at Breeden’s home. The
paramedics began treating Holmes, who was in critical condition.
Holmes then changed his story somewhat and advised the
paramedics that he had injured himself walking down the road and
falling into a mirror. The paramedics did not believe this
explanation, but they were primarily concerned with keeping
Holmes alive.
When State Troopers Martin and Underwood responded to the
request for assistance, they found Holmes intoxicated and being
believed by the authorities that the injured man’s name was most
likely Jonathan Ross. It was ultimately determined, however,
that his name is George Holmes.
5
treated by the paramedics. Holmes also told the troopers that
he had injured himself walking down the road and falling into a
mirror, which they found unbelievable. Trooper Martin spoke
briefly to Shirley, who thought the lacerations on Holmes’s arm
were defensive wounds from a knife. As a result, Martin
suspected that Holmes had been the victim of a malicious
wounding. After Martin unsuccessfully urged Holmes to reveal
the truth regarding his injuries, Holmes was taken to the
hospital.
Once the ambulance had departed, Shirley told the troopers
she believed that Holmes had a brother, defendant Ross, who
lived in a house about a hundred yards away on Black Walnut
Drive. The troopers promptly went to the Black Walnut Drive
residence and encountered Ross as well as six to eight others.
Those present at Ross’s residence were intoxicated,
uncooperative, and belligerent. When the troopers advised the
group at Ross’s residence of Holmes’s dire condition and that he
was being rushed to the hospital, Trooper Martin overheard some
individuals in the group accusing others of being “involved,”
plus statements that “the people involved needed to leave the
house.” J.A. 155. Based on these events, Martin concluded that
a serious crime had probably been committed against Holmes.
Additionally, Ross admitted that the Black Walnut Drive house
6
was his but refused to consent to a search of it by the
troopers.
While at the Ross residence, Troopers Martin and Underwood
requested backup support and Troopers Heil and Chandler
responded. The four troopers then decided that Heil and
Chandler would leave to seek a search warrant for Ross’s
residence, and that Martin and Underwood would remain at the
residence while the warrant was being sought. Returning to the
State Police detachment in Charles Town, Heil prepared his
affidavit for the warrant, relying primarily on information
provided by Martin and Underwood.
Trooper Heil’s search warrant affidavit first asserts that
“Ukn [unknown] subjects . . . maliciously wounded [Holmes],” and
then spells out the supporting facts for the warrant being
sought. J.A. 118-23. After describing his own qualifications,
Heil related the following in numbered paragraphs:
4. On Tuesday 6-12-07 at approximately 1810 hours
[6:10 p.m.], Trooper[s] . . . Martin and . . .
Underwood responded to an injured person complaint at
[Breeden’s home].[ 5] [They] arrived on the scene and
observed the victim, [Holmes], suffering from severe
lacerations to the body. [Holmes] was also reported
to have been throwing up blood prior to the
Troopers[’] arrival.
5
Although the search warrant affidavit relates that the
troopers responded to the injured person complaint at 6:10 p.m.,
the evidence was that Holmes did not come to Breeden’s home
until about 6:40 p.m.
7
5. [Holmes] advised Trooper . . . [M]artin he had
been at a gathering at 306 Black Walnut [Drive] when
he was attacked.[ 6] [Holmes] did not provide any
additional information before being transported to
Jefferson County Hospital.
6. Trooper[s] . . . Martin and . . . Underwood
arrived on the scene at 306 Black [W]alnut Drive and
encountered several intoxicated subjects at the
residence. . . . Martin heard one of the
occupants . . . utter that [two other occupants]
needed to leave the residence because they were
involved but [the occupant] would not provide . . .
Martin with any additional information.
7. Trooper . . . Martin observed that the occupants
in the residence, Robert Ross [and six other persons
present] were belligerent toward him and Trooper
Underwood and refused to provide any information about
the criminal incident. Mr. Ross stated he was the
owner of the residence but refused to allow . . .
[M]artin to search his residence . . . .
8. Trooper[s] Chandler and . . . Heil arrived on the
scene and were briefed by . . . Martin about what had
occurred. Trooper[s] Heil and . . . Chandler advised
that they would obtain a search warrant to search for
possible evidence related to the crime committed.
9. Your Affiant’s previously described training and
experience and the above described information leads
your Affiant to believe that evidence of the crime
committed is possibly contained within the residence
located at 306 Black Walnut Drive.
J.A. 122-23.
6
The correct address of Ross’s residence was 342 Black
Walnut Drive. The incorrect “306” number had been relayed to
Trooper Heil by the emergency personnel, but Heil had been to
Ross’s residence and knew its correct location. Ross has never
maintained that this inaccuracy is material in any way to his
suppression effort.
8
On the basis of Trooper Heil’s search warrant affidavit, a
state court magistrate in Charles Town issued a search warrant
early that evening, commanding the search of Ross’s residence
for “any evidence of the [aforementioned] crime including any
weapon used.” J.A. 120. 7 Heil and Chandler then returned to
Ross’s residence with the search warrant and executed it. While
conducting the search, Heil was notified that Ross was a
convicted felon, and the troopers thereafter seized, inter alia,
the three firearms underlying Ross’s conviction. The search was
completed by about 10:30 p.m. 8
B.
After being indicted, defendant Ross moved to suppress the
firearms seized during the search of his residence, asserting
that the seizure contravened the Fourth Amendment. He
maintained that the search warrant affidavit included false
statements; that the false statements had been included
knowingly and intentionally, or with a reckless disregard for
the truth; and that the false statements were necessary for a
finding of probable cause. Ross specifically targeted the
7
The search warrant does not indicate the time it was
issued.
8
As it turned out, Holmes was apparently not the victim of
a malicious wounding. He had instead injured himself while
attempting to break into a neighbor’s home to steal an ATV.
9
affidavit’s Paragraph 5, alleging, inter alia, that contrary to
that Paragraph, neither the police report nor the criminal
complaint indicated that Holmes had advised Trooper Martin that
Holmes had been attacked.
The magistrate judge concluded that an evidentiary hearing
was warranted, pursuant to Franks v. Delaware, 438 U.S. 154(1978), and conducted the Franks hearing on January 15, 2009, in
conjunction with the pretrial motions hearing. The Supreme
Court’s Franks decision entitles an accused to an evidentiary
hearing, subject to two conditions, on the veracity of
statements contained in a search warrant affidavit: (1) the
accused must make a substantial preliminary showing that the
affidavit contains false statements that were made knowingly and
intentionally, or with a reckless disregard for the truth, and
(2) the affidavit, after being purged of such false statements,
must be insufficient to establish probable cause. See 438 U.S.
at 155-56. The magistrate judge later explained in his report
and recommendation that Ross was entitled to a Franks hearing
because “[t]he police report [prepared by Troopers Underwood and
Martin,] and the search warrant affidavit [prepared by Trooper
Heil,] varied [on] whether or not [Holmes] told the Troopers he
10
was attacked.” United States v. Ross, No. 3:08-cr-00019, slip
op. at 9 (N.D. W. Va. Jan. 22, 2009) (the “Report”). 9
At the Franks hearing, Trooper Martin acknowledged that
Paragraph 5 of the affidavit was inaccurate in two respects.
First, the initial sentence of Paragraph 5 inaccurately asserted
that Holmes had told Martin that Holmes had been attacked. 10 On
this point, Martin explained that Holmes had actually said that
he had come from Ross’s residence or that general area, and that
he (Martin) had himself concluded that Holmes had been attacked,
based on his experience and on Shirley’s opinion that the
lacerations were defensive wounds. Second, Martin admitted that
the other sentence of Paragraph 5 was also inaccurate, in that
Holmes had provided some limited “additional information” before
being transported to the hospital. 11 That is, Holmes had given
several false names and differing explanations for his wounds.
Trooper Heil also testified at the Franks hearing, explaining
that he had predicated his affidavit on information provided by
Troopers Martin and Underwood during the on-the-scene briefing
9
The Report is found at J.A. 137-50.
10
The first sentence of Paragraph 5 states, “[Holmes]
advised Trooper . . . [M]artin he had been at a gathering at 306
Black Walnut [Drive] when he was attacked.” J.A. 122.
11
The second sentence of Paragraph 5 states, “[Holmes] did
not provide any additional information before being transported
to Jefferson County Hospital.” J.A. 122.
11
at Ross’s residence and obtained in a subsequent telephone
conversation between Heil and Martin. 12
On January 22, 2009, after the Franks hearing, the
magistrate judge issued his Report to the district court,
recommending that the motion to suppress be denied. The Report
found that
[Holmes] did not tell [Troopers Martin and Underwood]
he was attacked, and Trooper Heil simply erred in
drafting the search warrant [affidavit]. Trooper Heil
had hurriedly obtained the information second-hand
from Troopers Martin and Underwood, which explains the
inaccurate statements.
Report 9. Notably, the magistrate judge then made an assessment
of the affidavit — with the inaccurate statements purged (the
“purged affidavit”) — and concluded in his Report that the
purged affidavit was sufficient to establish probable cause for
issuance of the search warrant. See id. (“[E]ven after excising
the false statements from the affidavit, the Court finds that
probable cause still exists [for] the search warrant.”). 13
12
The two paramedics, as well as Breeden, also testified at
the Franks hearing. The first paramedic explained that he did
not speak to Holmes and that the other paramedic treated Holmes.
The second paramedic testified that Holmes claimed to have
injured himself by falling on a mirror while walking down the
road. Breeden explained that Holmes claimed to have injured
himself by falling in the woods. Neither the second paramedic
nor Breeden believed Holmes’s explanation, but neither heard
Holmes say he was attacked.
13
The Report explained that a Franks hearing was justified
in this case by the apparent discrepancies with respect to
(Continued)
12
By its order of March 16, 2009, the district court adopted
the Report, thus denying Ross’s motion to suppress. See United
States v. Ross, No. 3:08-cr-00019 (N.D. W. Va. Mar. 16, 2009)
(the “Order”). 14 The court, responding to Ross’s objection that
the magistrate judge committed clear error in finding that
Trooper Heil “simply erred in drafting the search warrant
[affidavit],” Report 9, concluded that “this Court simply cannot
agree that the information provided was done so intentionally or
recklessly.” Order 15. Rather, the court adopted the finding
of the magistrate judge that Heil was merely negligent in
providing “inaccurate” and “false” information. See Order 9;
see also Report 9. 15 Thereafter, Ross entered his guilty plea
and, on July 15, 2009, the court sentenced him under 18
U.S.C. § 924(e) to 180 months in prison. Ross has timely noted
whether Holmes had told the troopers that he had been attacked.
The Report concluded, nonetheless, that the purged affidavit is
sufficient to establish probable cause for issuance of the
search warrant. This conclusion suggests that defendant Ross
was not entitled to a Franks hearing in the first place. See
United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)
(observing that, to be material under Franks, omitted
information must be “necessary to the finding of probable cause”
(internal quotation marks omitted)).
14
The Order is found at J.A. 151-66.
15
The terms “inaccurate” and “false” are used somewhat
interchangeably in the magistrate judge’s Report and the
district court’s Order.
13
this appeal from the court’s final judgment, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We assess de novo the legal determinations underlying a
district court’s suppression ruling, and we review the factual
findings underlying such a ruling for clear error. See United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). A
determination of probable cause is an issue of law to be
reviewed de novo. See United States v. Wilhelm, 80 F.3d 116,
118 (4th Cir. 1996). In making a probable cause assessment, a
judicial officer must simply 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.”
Illinois v. Gates, 462 U.S. 213, 238 (1983).
III.
A.
Generally, an accused is not entitled to challenge the
veracity of a facially valid search warrant affidavit. In its
decision in Franks v. Delaware, however, the Supreme Court
carved out a narrow exception to this rule:
14
[W]here the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the
defendant's request.
438 U.S. 154, 155-56 (1978). After making the essential
preliminary showing, an accused is entitled to an evidentiary
hearing (commonly referred to as a “Franks hearing”) on the
veracity of the statements in the affidavit. The purpose of a
Franks hearing is to determine whether the probable cause
determination was based on intentionally false statements. See
United States v. Akinkoye, 185 F.3d 192, 199 (4th Cir. 1999).
If, after a Franks hearing, the defendant has shown by a
preponderance of the evidence that false statements were
knowingly and intentionally (or with reckless disregard for the
truth) included in the search warrant affidavit, and that such
false statements were necessary to establish probable cause, the
evidence seized must be suppressed. See Franks, 438 U.S. at
155-56.
In order for the Franks rule to apply and justify
suppression, the accused must satisfy both segments of the rule.
First, the defendant must show by a preponderance of the
evidence that the affiant placed false statements in the
affidavit, either knowingly and intentionally or with a reckless
15
disregard for the truth. See Franks, 438 U.S. at 156. And it
is clear that false statements placed in an affidavit on the
basis of negligent police communications are insufficient. See
Herring v. United States, 129 S. Ct. 695, 703 (2009). Second,
with such false statements purged from the affidavit, it must
yet be insufficient to establish probable cause. See Franks,
438 U.S. at 155-56. Thus, if an affidavit includes false
statements knowingly and intentionally (or recklessly) made, the
evidence seized in the resulting search will not be suppressed
if the affidavit, purged of the false statements, is nonetheless
sufficient to establish probable cause. See United States v.
Friedemann, 210 F.3d 227, 229 (4th Cir. 2000) (requiring
suppression only if false statements necessary to finding of
probable cause); Wilkes v. Young, 28 F.3d 1362, 1365 (4th Cir.
1994) (“[A] false or misleading statement in a warrant affidavit
does not constitute a Fourth Amendment violation unless the
statement is necessary to the finding of probable cause.”
(internal quotation marks omitted)).
On the merits of the suppression ruling, the district court
determined, based on the Report and the record, that false and
inaccurate statements had been included in the search warrant
affidavit. The court also found, however, that no false and
inaccurate statements had been knowingly and intentionally (or
16
with reckless disregard for the truth) placed in the affidavit.
The Order specified that
Trooper Heil simply erred in drafting the search
warrant [affidavit]. Trooper Heil had hurriedly
obtained the information second hand from Troopers
Martin and Underwood, which explains the inaccurate
statements.
Order 9. Leaving no question about its ruling, the Order
further specified that “this Court simply cannot agree that the
information provided was done so intentionally or recklessly.”
Id. at 15. Although the court could well have ended its
analysis (and declined to suppress) on the bases of those
findings and conclusions, it did not do so. The court went
further and analyzed the second segment of the Franks test and
also concluded that the purged affidavit was sufficient to
establish probable cause. See id. at 14.
B.
In his appeal, Ross first contends that the district court
clearly erred in finding that Trooper Heil had not intentionally
or recklessly included false statements in the affidavit.
Secondly, Ross asserts that the court erred in concluding that
the purged affidavit was sufficient to establish probable cause.
To dispose of this appeal, we are entitled under Franks to
proceed directly to Ross’s second point and assess whether, with
the false and inaccurate statements redacted, the purged
affidavit is nonetheless sufficient to establish probable cause.
17
If the answer to that question is in the affirmative, Ross’s
suppression contention must be rejected.
As explained heretofore, the magistrate judge and the
district court agreed that the search warrant affidavit was
false and inaccurate in two respects, both of which related to
Paragraph 5. First, contrary to Paragraph 5, Holmes did not
advise Trooper Martin that he was attacked. Second, also
contrary to Paragraph 5, the statement that Holmes had provided
no other information before being taken to the hospital was
inaccurate, in that Holmes had actually given several false
names and two different explanations for his injuries. The only
question for us to resolve is whether the purged affidavit —
untainted by false or inaccurate statements — is nonetheless
sufficient to establish probable cause for the search warrant.
As we have recognized, the concept of probable cause is not
subject to a precise definition. See United States v.
Richardson, 607 F.3d 357, 369 (4th Cir. 2010). Nevertheless, as
the Supreme Court has explained, probable cause plainly
“exist[s] where the known facts and circumstances are sufficient
to warrant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found.” Ornelas v.
United States, 517 U.S. 690, 696 (1996). And, as in this very
case, a search warrant affidavit is “‘normally drafted by [a
nonlawyer] in the midst of and haste of a criminal
18
investigation.’” United States v Colkley, 899 F.2d 279, 300
(4th Cir. 1990) (quoting United States v. Ventresca, 380 U.S.
102, 108 (1965)). The Supreme Court has also explained that
elaborate specificity in such an affidavit is not necessary.
See Illinois v. Gates, 462 U.S. 213, 235 (1983). As a result,
an assessment of the presence of probable cause must be based on
the totality of the relevant circumstances, rather than on the
technical or rigid demands of a formulaic legal test. See id.
at 230-31; United States v. Blackwood, 913 F.2d 139, 142 (4th
Cir. 1990). In making a probable cause assessment, a judicial
officer must simply have made “a practical, commonsense decision
whether given all the circumstances . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Gates, 462 U.S. at 238. Additionally,
we have expressed a strong preference, when the circumstances
permit, for law enforcement officers to seek and obtain a search
warrant before conducting a search. See United States v.
Srivastava, 540 F.3d 277, 288 (4th Cir. 2008).
Applying the foregoing principles to these circumstances,
it is clear that the purged affidavit is sufficient to establish
a “fair probability” that evidence of a malicious wounding would
be found in Ross’s residence. First, the nature and seriousness
of Holmes’s injuries, without reasonable explanation, are
sufficient to confirm Trooper Martin’s initial view that Holmes
19
had been the victim of a malicious wounding. Troopers Martin
and Underwood had proceeded immediately from the location where
the critically injured Holmes had been found and treated to
Ross’s nearby residence on Black Walnut Drive. Furthermore, the
occupants of the Ross residence made several statements that
those “involved” needed to leave. These statements, viewed in
context, are sufficient to show that evidence of a malicious
wounding would probably be found in Ross’s residence on Black
Walnut Drive. Applying principles of practicality and
commonsense, the purged affidavit thus establishes probable
cause for issuance of a search warrant for Ross’s residence,
seeking evidence of a malicious wounding. The firearms
underlying Ross’s conviction were therefore seized in accordance
with applicable constitutional principles, and the district
court did not err in declining to suppress them.
IV.
Pursuant to the foregoing, we reject Ross’s contention on
the seizure of the firearm evidence and affirm his conviction.
AFFIRMED
20