United States v. Reddicks , 237 F. App'x 826 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4982
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY DEONTA REDDICKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:06-cr-00010)
Submitted: July 17, 2007 Decided: July 30, 2007
Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John Weber, III, WEBER & PEARSON, P.C., Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Anthony Reddicks appeals from his conviction, by
jury, of possession of more than fifty grams of crack cocaine
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
He argues that the search that produced evidence against him was
predicated on an insufficient or intentionally false warrant, and
that the district court’s denial of his motion to suppress that
evidence should be reversed. Moreover, he seeks a new trial
because the district court allowed allegedly prejudicial
testimony by a government expert witness. For the reasons that
follow, we find no error and affirm.
I.
In support of his January 31, 2006 application for a warrant
to search the residence in which Appellant and his family lived,
Detective J.D. Carter of the Roanoke City Police submitted the
following statement:
Within the past 72 hours a reliable confidential
informant was at the residence to be searched and
observed an unknown B/M [black male] possess and offer
for sale an amount of off white chunk substance. The
B/M indicated to the informant that the off white chunk
substance was crack cocaine. The informant is an
admitted drug user and is familiar with the packaging
and appearance of crack cocaine.
J.A. 65. The affidavit form in the application provided for two
options: one to be checked if the officer had personal knowledge
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of the facts contained therein, and the other to be checked if
the officer was advised of those facts by an informant. Carter
checked both options. He wrote further that the informant had
given information leading to four convictions and the capture of
a fugitive within the past several years. “All information,” he
commented, “has been corroborated in whole or in part by
detectives.” Id.Carter obtained the warrant and executed it on the same day.
In one bedroom of the house, the police found the appellant
sleeping, alone and in his underwear. A few feet away lay a pair
of jeans containing crack cocaine and $414 in cash. Shortly
thereafter, Appellant was arrested and indicted under 21 U.S.C. §
841(a)(1).
Before trial, Appellant moved to suppress the evidence from
the search, arguing that the warrant failed to evince probable
cause and was obtained in reckless disregard of the truth. In
support of the motion, Appellant’s father testified to having
been at the family residence for the seventy-two hours prior to
the execution of the warrant, and that only two friends had
visited the house within that time. The father admitted to
having slept during the period, however.
In response, Carter testified that he met with the informant
frequently, if not daily, and that he had underrepresented the
informant’s helpfulness in the affidavit to protect the
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informant’s identity: this informant had contributed to some
twenty-five arrests in the previous five years. As to
corroboration, Carter mentioned that he had verified that the
address given by the informant was Appellant’s family’s, and that
he had “dealt with [the family] several times in the past”
regarding drug-related activity. J.A. 35. Crediting the
officer’s testimony, the court denied the motion.
At trial, the government’s trace evidence expert testified
that head and pubic hairs found in the jeans were consistent with
Appellant’s; other traces, such as leg hair and hair fragments,
were not suitable for microscopic comparison. Appellant’s
counsel pursued this latter fact, asking, “We cannot exclude the
possibility . . . that those [non-comparable hairs] came from
someone else other than Anthony Reddicks, correct?” J.A. 135.
The trace expert agreed: since the hairs could provide no
comparison, she could not tell whose they were. On redirect, the
United States responded, “Is it possible, then, that [the hairs]
came from Mr. Reddicks?” J.A. 136. Over Appellant’s objection,
the expert answered in the affirmative.
Another United States expert witness testified that
Appellant’s DNA profile matched the major contributor of DNA to
the jeans. This profile would be shared, theoretically, by only
one in twelve quadrillion other African Americans. The jury
subsequently convicted Appellant, and he timely appealed.
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II.
Appellant makes three arguments: (1) that the search of his
home was invalid because, on its face, the warrant was devoid of
probable cause; (2) that, if the warrant did evince probable
cause, it was because of Carter’s intentionally or recklessly
false statements; and (3) that the trace expert’s affirmative
answer in the colloquy described above was unduly prejudicial
speculation that deprived Appellant of a fair trial. We consider
each argument in turn.
A.
The standard of review for a magistrate’s determination of
probable cause is one of great deference. United States v.
Blackwood, 913 F.2d 139, 142 (4th Cir. 1990). He or she need
only find, in a commonsense appraisal of the reliability and
“basis of knowledge” of those offering hearsay evidence, that
“there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Id. (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Here, Appellant asserts that the warrant was insufficient,
on its face, to establish probable cause because Carter did not
sufficiently corroborate the informant’s story, and because the
informant provided no information about the person allegedly
selling the drugs.
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Appellant’s assertion that the informant’s tip was
insufficient absent substantial police corroboration, relying on
United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991), is
misplaced: Miller concerns the probable cause requirements for a
warrantless arrest when the informant has never previously
advised the police, id. at 696-97 n.1. By contrast, the warrant
here stipulated that the informant was credible because he had
previously provided valuable information five times. “[A]
proven, reliable informant is entitled to far more credence than
an unknown, anonymous tipster.” United States v. Bynum, 293 F.3d
192, 197 (4th Cir. 2002). In addition, Carter’s informant
alleged first-hand experience of illegal drug activity at
Appellant’s residence, an obvious basis of knowledge for his
information. The warrant therefore “suffices for the practical,
common-sense judgment called for in making a probable cause
determination.” Gates, 462 U.S. at 244.
Appellant’s contention that the warrant needed to identify
him as the seller of the drugs misconstrues the relevant inquiry.
The magistrate was to gauge the likelihood of finding contraband
in the place described in the affidavit, not on the person of the
appellant. Regardless of who offered the crack for sale, it was
reasonably likely that crack might be found where the alleged
sale occurred. See Blackwood, 913 F.2d at 142-43.
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B.
Appellant also challenges the warrant via Franks v.
Delaware, 438 U.S. 154 (1978), under which a criminal defendant
is entitled to a hearing on the truth of a warrant’s allegations
if he “makes a substantial preliminary showing” that the
affiant’s statements, essential to the probable cause
determination, were either intentionally false or in reckless
disregard of the truth, id. at 155-56. In reviewing the denial
of a motion for a Franks hearing, we examine the court’s
conclusions of law de novo, but accept its findings of fact
unless clearly erroneous. United States v. Blatstein, 482 F.3d
725, 730 (4th Cir. 2007).
Appellant argues that he made a “substantial preliminary
showing” based on two allegations. First, the affidavit does not
set out any information about the alleged seller of the drugs,
undermining the credibility of the informant’s tip. Second, the
officer did not actively corroborate any of the tip beyond
confirming the address. Appellant therefore concludes that
Carter’s sworn statements, “I have personal knowledge of the
facts set forth in this affidavit” and “[a]ll information has
been corroborated in whole or in part by detectives” revealed a
reckless disregard for the truth.
Even if we accept Appellant’s two factual allegations as
true, he cannot prevail. The district judge credited Carter’s
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undisputed testimony, which establishes that he had a close
confidential relationship with the informant and knew Appellant’s
family from previous drug-related experiences. Carter relayed a
trusted source’s information about a crack sale as it was given
to him; this does not amount to a disregard of the truth merely
because the seller was unknown to the informant. Nor, contrary
to Appellant’s insinuation, was the informant’s story necessarily
false: although Appellant’s father testified that no strangers
came to the house during the seventy-two hours preceding the
search, the district court correctly noted that he could not have
been aware of visitors while he was asleep. Finally, Carter
underrepresented the informant’s reliability, tending to
discourage, rather than encourage, a finding of probable cause.
His personal experience with Appellant’s family served as both
“personal knowledge” and “corroborat[ion] . . . in part by
detectives” for the purposes of the affidavit. J.A. 35-36.
In sum, Appellant failed to make a substantial preliminary
showing that these statements were “designed to mislead . . . or
in reckless disregard of whether they would mislead” the
magistrate in finding probable cause. United States v. Colkley,
899 F.2d 297, 301 (4th Cir. 1990) (emphasis omitted). Even if
the statements were misleading, they were not essential to
finding probable cause: probable cause derived from the
informant’s favorable track record and his first-hand account of
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drug activity, not from Carter’s generalized assertions. Thus,
this claim fails.
C.
Appellant last contends that the trace evidence expert’s
testimony at trial – that it was possible that the non-comparable
hair specimens belonged to Appellant – was unduly prejudicial,
and the district court erred in allowing it. Evidentiary rulings
are reviewed for abuse of discretion. United States v.
Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). Appellant asks for
a new trial, arguing that the prejudice from the expert’s
testimony outweighed any probative value it may have had. We
disagree for three independent reasons.
First, the trial court correctly considered the expert’s
statement to be an assertion of objective fact, not opinion. The
expert’s statement, “It is possible . . .” drew no conclusions,
and was the narrowest way of asserting that the non-comparable
hairs could have, or could not have, belonged to Appellant. As
discussed below, this assertion was designed to counter
Appellant’s suggestion that the non-comparable hairs were not
his. This testimony therefore “tend[ed] to make the existence of
[a] fact of consequence more or less probable,” Id. at 744, and
the district court did not abuse its discretion by admitting it.
Second, the answer that Appellant finds objectionable was
rebuttal evidence, introduced only on cross examination after
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Appellant himself brought up the topic. To be admissible,
rebuttal evidence must be “reasonably tailored” to the inference
it seeks to refute. United States. v. Jackson, 327 F.3d 273, 293
(4th Cir. 2003). The government’s question met this standard.
To paraphrase somewhat, “Is it possible that they were Reddicks’s
hairs?” was simply the converse of Appellant’s question, “We
cannot exclude the possibility that they were not Reddicks’s,
correct?” Appellant insinuated that the non-comparable hairs
could belong to anyone (i.e., perhaps to someone other than
himself). The government’s question clarified that the hairs
could also be Appellant’s, seemingly the weakest possible
assertion to rebut Appellant’s insinuation. Surely this
constitutes the “nexus” required between rebuttal evidence and
that which is rebutted. United States v. Stitt, 250 F.3d 878,
897 (4th Cir. 2001).
Finally, the government’s other evidence rendered this
error, if error it was, harmless. Ignoring the non-comparable
hairs, the trace evidence expert found head and pubic hairs
consistent with Appellant’s in the jeans containing the drugs and
money. The DNA evidence linked Appellant to the jeans with
scientific certainty. He was found sleeping next to those jeans
alone in his underwear. Since it appears beyond a reasonable
doubt that the jury would have reached the same verdict, Neder v.
United States, 527 U.S. 1, 17 (1999), the conviction stands
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regardless of whether the exchange that Appellant invited was
erroneous.
III.
For the foregoing reasons, we affirm the district court and
uphold Appellant’s conviction. We dispense with oral argument;
because the facts and legal contentions are adequately presented
in the materials before the court, oral argument is unnecessary
to the decisional process in this case.
AFFIRMED
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