US v. David Rich, No. 10-4470 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4470 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DAVID RICH, a/k/a Oakie, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00438-WDQ-1) Submitted: May 23, 2011 Decided: June 14, 2011 Before MOTZ, KING, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Sicilia Englert, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Rich was convicted, following a jury trial, of a variety of drug- and firearm-related offenses and was sentenced to a term of imprisonment of life plus twenty years. Prior to trial, Rich moved to suppress evidence seized in a search of a particular apartment apartment ). The in Windsor district court Mill, denied Maryland ( the motion. Rich the appeals the district court s ruling. On appeal, Rich argues that evidence seized from the apartment should have been suppressed because in the affidavit used to secure the warrant, the Government failed to establish a nexus between the apartment and drug trafficking activity. Rich contends that the affidavit failed to establish the apartment was Rich s residence. We review the factual findings underlying a district court s ruling on a motion to suppress for clear error and the court s legal 592 F.3d 586, (2010). When evaluating the denial of a suppression motion, we construe 589 de novo. (4th Cir.), Id. circumstances, a the denied, Government, the prevailing party below. of in cert. States 130 most validity evidence United light the the conclusions search warrant under determining whether the v. S. Kelly, Ct. favorable 3374 to the This court reviews the totality issuing judge of had the a substantial basis for finding there was probable cause to issue 2 the warrant. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005). We afford great deference to the probable cause determination of United States v. Allen, 631 F.3d 164, 173 the issuing judge. (4th Cir. 2011). We avoid applying hypertechnical scrutiny of affidavits lest police officers be encouraged to forgo the warrant application process altogether. United States v. Robinson, 275 F.3d 371, 380 (4th Cir. 2001) (quoting Gates, 462 U.S. at 236). Here, the affidavit provided abundant probable cause for justifying apartment. the issuance of a search warrant for the The affidavit recounted information police obtained from a confidential informant that was corroborated during the course of the investigation and prior to the issuance of the warrant. Police placed the apartment building under surveillance for an evening and identified the apartment where Rich had spent the night. The next day, when police confronted and identified themselves to Rich, he fled, nearly hitting an officer with his vehicle in the process. After a brief pursuit, police located Rich s abandoned vehicle and found him hiding in a wooded area. cash. They recovered several cell phones and $733 in A K-9 scan of the vehicle indicated the presence of narcotics. Under the totality of the circumstances, we hold 3 that the issuing judge had a substantial basis supporting the finding of probable cause to search the apartment. Next, Rich argues that the district court should have granted Franks * a hearing because Baltimore detective Brian Shutt s affidavit contained a false statement that Shutt saw Rich leave the representation neutral apartment. failed magistrate to to Rich disclose determine asserts facts whether that that there would was Shutt s allow a sufficient proof that Rich had come out of [the apartment]. In order to obtain a Franks hearing to attack a facially sufficient warrant affidavit, a defendant must make a substantial showing that a false statement critical to a finding of probable reckless affidavit. cause was knowingly disregard for the and truth, intentionally, included in the or with warrant See Franks, 438 U.S. at 155-56; United States v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011). This showing must be more than conclusory and should include affidavits or other evidence to overcome the presumption of the warrant s validity. Clenney, 631 F.3d alterations omitted). * at 663 (internal quotation marks and Where a defendant attacks an affidavit Franks v. Delaware, 438 U.S. 154 (1978). 4 based on omissions, he must show that the omissions were designed to mislead, . . . or made in reckless disregard of whether they would mislead and that the omissions were material, meaning that their inclusion in the affidavit would defeat probable cause. Id. at 664 (quoting United States v. Colkley, 899 F.3d 297, 301 (4th Cir. 1990)) (emphasis omitted). Rich has failed to make the requisite showing. Shutt observed the man he would later learn was Rich on a third-floor balcony of the apartment building. as he exited the building. Rich was under surveillance Based on a comparison with other buildings, Shutt was able to determine that the balcony belonged to the apartment at issue. the intermediate apartment, the mislead, nor steps that omission made in Although Shutt s affidavit omitted enabled him was neither material, reckless disregard of to identify the designed whether it to would mislead. Accordingly, we affirm the district court s judgment. 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 5
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