United States v. Koon Chung Wu , 217 F. App'x 240 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KOON CHUNG WU, a/k/a Alex Wu, a/k/a Joe Wu,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00269-WLO)
Submitted: January 4, 2007 Decided: February 2, 2007
Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After the district court denied his motion to suppress
evidence, Koon Chung Wu entered a conditional guilty plea to using
over forty counterfeit credit cards with an intent to defraud, in
violation of 18 U.S.C.A. § 1029(a)(1) (West 2000), and to using
unauthorized credit cards to obtain items collectively valued at
approximately $300,000, in violation of 18 U.S.C.A. § 1029(a)(2).
Wu reserved his right to appeal the district court’s denial of his
suppression motion. On appeal, Wu argues that the evidence against
him was obtained in violation of the Fourth Amendment. For the
reasons that follow, we affirm the district court’s denial of Wu’s
motion to suppress evidence and, accordingly, affirm his
convictions.
I.
The facts of this case are undisputed. On May 9, 2005,
officers from the Cabarrus County, North Carolina Sheriff’s Office
received a tip about a suspicious package located at the United
Parcel Service (UPS) distribution center in Kannapolis, North
Carolina. The tip suggested that the package contained controlled
substances. The officers located the package, which weighed
approximately forty-four pounds and was labeled “books,” and
determined that it had been shipped via UPS’s overnight service by
“Alex Wu” from a UPS office in Concord, North Carolina. The
2
officers called in a North Carolina State Highway Patrol K-9 unit
to conduct a drug dog sniff of the package. Trooper G.A. Barger
arrived with his drug detection dog “Cody,” and Cody sniffed three
separate “lineups” of packages that included the suspicious package
and packages known not to contain controlled substances. Each time
Cody alerted to the presence of controlled substances in the
suspicious package.
On the basis of Cody’s positive alerts, Detective T.D. Parker
applied for and obtained a search warrant to search the package for
controlled substances. Aside from describing the tip about the
package and Cody’s alerts to the presence of controlled substances,
the warrant affidavit also described Cody’s training and
certification as a drug-detection dog. The affidavit stated in
pertinent part that
Trooper G. Barger, of the North Carolina State Highway
Patrol, and narcotics detection K-9 “Cody,” are certified
as a team in narcotics detection by the North Carolina
Police Work-dog Association. Trooper G.A. Barger and
“Cody” graduated from the North Carolina State Highway
Patrol K-9 Detection School in affiliation with the North
American Police Work-dog Association, on April 30, 2004.
They successfully completed 240 hours of instruction from
March 2004 through May 2004. During this training and
certification period “Cody” has been allowed to sniff a
large number of packages, parcels and luggage. When
“Cody” has alerted to any of these items, narcotics have
been present in the overwhelming majority of these cases.
Trooper Barger and “Cody” also completed one re-
certification session at the Cumberland County Sheriff’s
Office on January 14, 2005. These re-certification
courses are designed to update previous certifications
and to confirm narcotics detection ability.
3
(J.A. at 22-23. (footnote omitted))
The officers searched the package but did not find any drugs.
Instead, they found three Rolex watches, three Apple iPods, three
Sony DVD camcorders, two Sony PlayStation consoles, three digital
cameras, and several other small electronic items. The Cabarrus
County Sheriff’s office seized the items, which were all new and
unopened in their original boxes.
On June 27, 2005, Parker received information about two more
suspicious packages located at the UPS office in Concord, North
Carolina. The packages, also labeled as containing “books,” had
been dropped off for shipment by “Joe Wu, 903 Lilly Green Court,
Concord, NC.” Barger and Cody were called in for a drug-dog sniff
of these packages, and Cody alerted to the odor of controlled
substances on one of the packages. Based on Cody’s alert,
Detective D.J. Degrace applied for a search warrant to search the
two packages. In the warrant affidavit, Degrace repeated the
information about Cody’s training that was included in the May 9
warrant application. The affidavit also described Cody’s alert to
the package and stated that Degrace “received information,
corroborated by Trooper G. Barger, that the same person shipping
the packages was responsible for sending a package on May 9, 2005
through UPS weighing 45 pounds that contained thousands of dollars
of stolen merchandise.” (J.A. at 12.) The affidavit also noted
that “‘Cody’ positively alerted for the presence of controlled
4
substances odor on one of the packages [searched on May 9].” (J.A.
at 12.) Accordingly, Degrace sought a warrant to “inspect the
contents of the two packages for controlled substances and/or
stolen property.” (J.A. at 13.)
The warrant issued, and the officers searched the packages.
They found four Apple laptop computers, five Sony Vaio laptop
computers, one Sony digital recorder, one Canon digital camera, and
one Apple 20GB iPod. As was true of the items seized in the May 9
search, all of the items were new and unopened in their original
boxes. The Cabarrus County Sheriff’s Office seized these items as
well.
The officers transported the seized items to the Sheriff’s
Office, where Detective Carl Gadd inspected them. During his
inspection, Gadd noticed a green “Office Depot Store #41” sticker
on one of the Sony Vaio laptops. He contacted Dee Moore, the
assistant manager of Office Depot Store #41, in Charlotte, North
Carolina, to determine if the computer had been purchased using a
fraudulent credit card. Gadd gave Morrison identifying information
about the computer, and Morrison told Gadd that she would research
the transaction. The next day Morrison informed Gadd that a Visa
credit card number ending in 9746 was used to purchase the
computer. Gadd contacted the credit card issuer, Navy Federal
Credit Union, and determined that the card had been used
fraudulently. The counterfeit card used at the time of purchase
5
was embossed with the name Tom E. Russo, and the individual who
used the credit card provided a counterfeit identification card in
the same name. The officers contacted the legal owner of the
credit card number, a Mr. Roberts from Virginia, and confirmed that
the card information had been stolen and used for unauthorized
transactions. The officers also discovered that two additional
fraudulent transactions had been made with the counterfeit card,
one for $1504.99 at an Office Depot in Charlotte and one for $428
at Office Max in Gastonia, North Carolina.
Based on this information, Gadd obtained a search warrant for
903 Lilly Green Court, Concord, North Carolina, the shipper’s
address on the packages. The warrant authorized the officers to
search for counterfeit credit cards, counterfeit identification
cards, financial records, machinery used in the counterfeiting of
credit cards and identification cards, bank records, various types
of electronic equipment, and watches. On June 28, 2005, Cabarrus
County detectives executed the warrant and searched the Lilly Green
Court residence. Wu and a woman named Carmen Marie Hensley were
present at the residence when the officer arrived to conduct the
search. The officers discovered and seized fifty-eight counterfeit
credit cards and four counterfeit New York driver’s licenses. They
also seized the following items: two large flat screen plasma/LCD
televisions; approximately $3,800 in cash; several computers;
dozens of DVD movies; several HDTV receivers; stereo equipment;
6
iPods; and a 1996 Lexus four-door sedan. These items had a total
value of approximately $100,000. The officers arrested Wu and
Hensley immediately, and Wu was charged with twenty-seven counts of
felony financial card forgery in the Cabarrus County District Court
in Concord.1
On June 29, 2005, U.S. Secret Service agents interviewed Wu
and Hensley. Special Agent James Motley interviewed Wu. Prior to
the interview, Motley advised Wu of his Miranda rights, which Wu
acknowledged and waived in writing. Following the interview, Wu
provided a written, signed statement in which he made numerous
incriminating admissions, including describing in some detail how
he and Hensley conducted their counterfeiting enterprise. Hensley
also made numerous incriminating statements during her interview.
Wu admitted that between January 2005 and June 2005 he and Hensley
obtained approximately $300,000 in merchandise through counterfeit
credit cards.2
On July 26, 2005, a grand jury sitting in the Middle District
of North Carolina returned a two-count indictment against Wu and
Hensley, charging them with using over forty counterfeit credit
1
These charges were dismissed on July 6, 2005, in light of the
federal indictment against Wu.
2
Drug dog sniffs of the Lexus sedan and the Lilly Green
residence resulted in positive alerts for the presence of
controlled substances. While no illegal drugs were found in either
the sedan or the residence, both Wu and Hensley admitted that they
used controlled substances and Hensley admitted that she stored
drugs on occasion in the sedan and the residence.
7
cards with intent to defraud, in violation of 18 U.S.C.A. §
1029(a)(1), and with using unauthorized credit cards to obtain
items collectively valued at over $300,000, in violation of 18
U.S.C.A. § 1029(a)(2).
On August 3, 2005, Wu appeared for arraignment and pleaded not
guilty to the indictment. Wu then filed a motion to suppress the
evidence obtained from the May 9 and June 27 searches of the UPS
packages and the June 28 search of his home. He claimed that the
officers lacked probable cause for both the May 9 and June 27
searches because the Government had not demonstrated Cody’s
reliability as a drug-detection dog. Wu also requested a hearing
under Franks v. Delaware, 438 U.S. 154 (1978) on the ground that
the warrant affidavits for the May 9 and June 27 searches contained
knowing or reckless falsity that misled the magistrate; Wu claimed
that the affidavits greatly overstated Cody’s accuracy in drug
sniffs. Accordingly, Wu contended that all evidence that flowed
from the search -– including the contents of the packages, the
items seized from his residence, and the incriminating statements
made by both him and Hensley -- should be suppressed as fruit of
the poisonous tree under Wong Sung v. United States, 371 U.S. 471(1963).
On September 12, 2005, the district court conducted a hearing
and denied Wu’s motion to suppress. The court concluded that
probable cause existed for both the May 9 and June 27 searches.
8
The court also held that Wu had not made the substantial
preliminary showing necessary to justify a Franks hearing because
it found that the representation in the warrant affidavits that
Cody had been accurate in an “overwhelming majority” of cases was
not “particularly inaccurate.” (J.A. at 195.)
Following the district court’s rulings, Wu entered a
conditional guilty plea to both counts of the indictment,
preserving only his right to appeal the district court’s ruling on
his motion to suppress. On January 27, 2006, the district court
sentenced Wu to 48 months’ imprisonment on each count, to run
concurrently, and to three years’ supervised release. Wu timely
noted an appeal. We have jurisdiction to hear this appeal pursuant
to 28 U.S.C.A. § 1291 (West 2006).
II.
On appeal, Wu argues that the district court erred in denying
his motion to suppress because (1) the warrant affidavits for the
May 9 and June 27 searches did not establish probable cause for the
searches and (2) the searches were also unconstitutional because
the officer-affiants made representations in the warrant affidavits
that were knowingly false or indicated a reckless disregard for the
truth. We address each argument in turn.
9
A.
In considering a district court’s ruling on a motion to
suppress evidence, we review questions of law de novo and findings
of historical fact and reasonable inferences drawn from those
findings for clear error. Ornelas v. United States, 517 U.S. 690,
699 (1996); United States v. Moreland, 437 F.3d 424, 429 (4th Cir.
2006). Because the district court denied Wu’s motion to suppress,
we view the facts adduced at the suppression hearing in the light
most favorable to the Government. United States v. Holmes, 376
F.3d 270, 273 (4th Cir. 2004).
Our legal inquiry begins with the Fourth Amendment, which
provides that people are “to be secure in their persons . . .
against unreasonable searches and seizures . . . and no Warrants
shall issue, but upon probable cause . . . .” U.S. Const. amend.
IV. Probable cause exists when, after considering the totality of
the circumstances, there is a “‘fair probability that contraband or
evidence of a crime will be found in a particular place.’” United
States v. Grubbs, 126 S. Ct. 1494, 1499 (2006)(quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)). “The probable cause standard
does not demand any showing that such a belief be correct or more
likely true than false.” Simmons v. Poe, 47 F.3d 1370, 1379 (4th
Cir. 1995)(internal quotation marks omitted). It is “a practical,
nontechnical conception that deals with the factual and practical
considerations of everyday life on which reasonable and prudent
10
men, not legal technicians, act.” United States v. Humphries, 372
F.3d 653, 657 (4th Cir. 2004)(internal quotation marks omitted).
Accordingly, we “have always applied a highly deferential standard
of review in considering the sufficiency of a finding of probable
cause by a magistrate.” Simmons, 47 F.3d at 1378.
We have stated that “[t]he detection of narcotics by a trained
dog is generally sufficient to establish probable cause.” United
States v. Robinson, 707 F.2d 811, 815 (4th Cir. 1983); see also
United States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994)(“When the
dog ‘alerted positive’ for the presence of drugs, the officer was
given probable cause for the search that followed.”). Of course,
implicit in our statement in Robinson is the assumption that a drug
dog’s positive alert for contraband must possess some indicia of
reliability for the alert to establish probable cause. Our sister
circuits have held that a search warrant based on a positive alert
by a drug dog is sufficient on its face to establish probable cause
if the affidavit supporting the warrant states that the dog is
trained and certified to detect controlled substances. See, e.g.,
United States v. Kennedy, 131 F.3d 1371, 1376-77 (10th Cir.
1997)(“As a general rule, a search warrant based on a narcotics
canine alert will be sufficient on its face if the affidavit states
that the dog is trained and certified to detect narcotics.”);
United States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996)(holding
that an affidavit need not describe the particulars of the dog's
11
training; an affidavit's description of a drug dog’s positive alert
for controlled substances coupled with a reference to the dog's
training in narcotics investigations is enough to establish
probable cause); United States v. Klein, 626 F.2d 22, 27 (7th Cir.
1980)(holding that a statement that a dog graduated from training
class and has proven reliable in detecting drugs on prior occasions
is sufficient to support probable cause).
Assuming that evidence of a drug dog’s training and
certification is needed to establish the dog’s reliability, such
evidence was clearly present in the instant case. Aside from
providing accounts of Cody’s positive alerts to the packages, the
affidavits supporting both the May 9 and June 27 warrants described
in some detail Cody’s training and certification as a drug-
detection dog, including describing how Trooper Barger and Cody had
completed 240 hours of instruction from March 2004 through May 2004
and noting that Barger and Cody had completed one re-certification
session on January 14, 2005 to “confirm narcotics detection
ability.” (J.A. at 23.)
We believe that this evidence of Cody’s training and
certification was enough by itself to establish Cody’s reliability
so that his positive alerts for controlled substances established
probable cause for both the May 9 and June 27 searches. Probable
cause only requires a “fair probability” that contraband will be
found in a certain place, Gates, 462 U.S. at 238, and Cody’s
12
positive alerts to the packages in both searches clearly
established a fair probability that the packages contained
controlled substances, given his training and certification as a
drug-detection dog.
In addition to reviewing the evidence of Cody’s training and
certification, however, the district court also heard testimony
from Trooper Barger, Cody’s handler, about Cody’s performance
statistics and his field experience from March 2005 to May 2005.
The district court found that Cody had demonstrated an impressive
degree of accuracy in training exercises, and based on its review
of Cody’s past field sniffs, the court found that Cody was accurate
approximately 67% of the time in the field when sniffing for
narcotics.3 While we believe that this factual finding was
unnecessary for the district court to have concluded that probable
cause existed for the searches given the evidence of Cody’s
training and certification, it serves to bolster the court’s
determination that Cody was sufficiently reliable for his positive
alerts to establish probable cause for the May 9 and June 27
searches. See United States v. Robinson, 390 F.3d 853, 874 (6th
Cir. 2004)(“[A]fter it is shown that the dog is certified, all
3
Wu incorrectly states in his opening brief that the district
court found that Cody was 60% accurate in the field when sniffing
for controlled substances. The district court clearly found that,
from March 2005 to May 2005, drugs were found six times when Cody
alerted and were not found three times, which, when expressed as a
percentage, was a finding that Cody was accurate approximately 67%
of the time in the field.
13
other evidence relating to his accuracy goes only to the
credibility of the testimony, not to the dog's qualifications.”
(internal quotation marks omitted)).
Despite this, Wu argues that the officers lacked probable
cause to conduct the June 27 search of the packages because Cody
had already proven unreliable – Cody had positively alerted for the
presence of controlled substances when none were present -- in the
May 9 search. Cody’s apparently “false” alert on May 9, however,
does not undermine the entire body of his previous work. That Cody
positively alerted to the presence of controlled substances when
none were found certainly is a factor to be considered under the
totality of the circumstances in determining whether probable cause
existed for the June 27 search, see Robinson, 390 F.3d at 874, but
the reliability of a drug-detection dog does not rise or fall on
the basis of one sniff. Cody had proven very accurate in sniffs
during his training. Moreover, factoring the May 9 alert into the
district court’s original calculation of Cody’s field accuracy
rate, Cody would still have been “correct” six times and
“incorrect” four times, rendering an accuracy rate of 60%. Because
“the probable cause-standard does not require that the officer’s
belief be more likely true than false,” Humphries, 372 F.3d at 660,
an accuracy rate of 60% is more than reliable enough for Cody’s
alert to have established probable cause. Thus, even without
considering the information in the June 27 warrant affidavit
14
concerning the stolen goods4 found during the May 9 search,
4
There is no indication in the record as to how the officers
determined that the items seized in the May 9 search were stolen.
In a brief styled as a “Supplemental Brief,” however, Wu argues for
the first time on appeal that the Cabarrus County officers’
seizures of the electronic items uncovered in the May 9 and June 27
searches were illegal under the Fourth Amendment. Relying on the
Supreme Court’s decision in Marron v. United States, 275 U.S. 192,
196 (1927), Wu contends that because the warrants only authorized
searches for controlled substances, the officers’ seizures of the
electronic items unconstitutionally transformed the warrants into
general warrants by violating the rule that a warrant describe with
particularity the things to be searched/seized. Wu further
contends that the “plain view” exception does not apply here
because the contraband nature of the electronic items could not
have been immediately apparent to the officers who searched the
packages.
This argument is wholly different from the argument that Wu
makes in the argument section of his opening brief. In his opening
brief, Wu only makes probable cause challenges to the initial
searches of the packages, focusing exclusively on Cody’s
reliability, and does not argue that the seizures of the items
found in the packages violated the Fourth Amendment. He also
contends in his opening brief that the affidavits supporting the
May 9 and June 27 searches contained knowing or reckless falsity.
Because Wu did not challenge the legality of the seizures in his
opening brief, and because this argument was readily available to
him at the time that he filed his opening brief, his argument that
the seizures violated the Fourth Amendment is waived. See Fed. R.
App. P. 28(a)(9)(“[T]he argument [section of appellant's brief] .
. . must contain . . . appellant's contentions and the reasons for
them, with citations to the authorities and parts of the record on
which the appellant relies.”); Yousefi v. INS, 260 F.3d 318, 326
(4th Cir. 2001) (holding that petitioner waived argument on appeal
raised for the first time in his reply brief by failing to raise it
in his opening brief). As we recently noted, “considering an
argument advanced for the first time in a [supplemental] filing is
not only unfair to the appellee, it also creates the risk of an
improvident or ill-advised opinion being issued on an unbriefed
issue.” United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir.
2006). Accordingly, because Wu has waived his argument concerning
the legality of the seizures, we do not address it.
15
probable cause existed for the June 27 search based on Cody’s
positive alert to the presence of controlled substances in the
package. Under the totality of the circumstances, the officers’
knowledge at the time of the June 27 search that the items seized
in the May 9 search had been stolen only further solidified the
probable cause finding.
B.
In his final argument, Wu contends that the May 9 and June 27
searches were constitutionally tainted because the officers
preparing the warrant affidavits provided information that was
knowingly false or at the least indicated a reckless disregard for
the truth. Specifically, Wu argues that the statement in both
affidavits that controlled substances have been recovered in an
“overwhelming majority” of cases when Cody has positively alerted
misled the magistrate because the officers knew that Cody had only
demonstrated around 67% accuracy in the field. Wu also argues that
the “overwhelming majority” statement was especially untruthful
when it was included in the June 27 warrant affidavit because Cody
had recently falsely alerted in the May 9 search.
While warrant affidavits are presumed valid, an affiant may be
impeached by a showing of deliberate falsity or reckless disregard
for the truth. Franks, 438 U.S. at 155-56; United States v. Jones,
913 F.2d 174, 176 (4th Cir. 1990). A defendant is entitled to a
16
Franks hearing only after making “a substantial preliminary showing
that a false statement knowingly or intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit” and that the false information was essential to the
probable cause determination. Franks, 438 U.S. at 155-56. Even
then, a Franks hearing is not required “if, when [the] 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.” Id. at 171-72.
We agree with the district court that Wu did not make the
requisite substantial preliminary showing to justify a Franks
hearing. The statement that Cody has been accurate in an
“overwhelming majority” of cases simply does not rise to the level
of knowing falsity or reckless disregard for the truth. Indeed,
although the district court reasonably found that the statement
referred to Cody’s accuracy in training exercises, not field
sniffs, we agree with the district court that even if the statement
referred to Cody’s accuracy in the field, it was not “particularly
inaccurate” given Cody’s 67% accuracy in his previous field
experiences. (J.A. at 195.) Moreover, even if we were to excise
the challenged statement from the affidavits, there was still
sufficient information in both the May 9 and June 27 warrant
affidavits to establish probable cause: both affidavits described
Cody’s training and certification, along with describing his
17
positive alerts to the packages, and the June 27 affidavit added
the information about the stolen goods retrieved during the May 9
search. We therefore conclude that the district court did not err
in denying Wu a Franks hearing.5
III.
Because we hold that probable cause existed for both the May
9 and June 27 searches of the UPS packages, we affirm the district
court’s denial of Wu’s motion to suppress. Accordingly, we affirm
his convictions.
AFFIRMED
5
Because we conclude that probable cause existed for both the
May 9 and June 27 searches even if the “overwhelming majority”
representation is excised from the affidavits, we need not reach
Wu’s argument, based on United States v. Leon, 468 U.S. 897 (1984),
that the “good faith” exception does not apply in this case.
18