UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4661
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES WILLIAM WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. James H. Michael, Jr.,
Senior District Judge. (CR-03-15)
Submitted: May 25, 2005 Decided: July 13, 2005
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. Maloney, MALONEY & DAVID, PLC, Richmond, Virginia, for
Appellant. John L. Brownlee, United States Attorney, William F.
Gould, Assistant United States Attorney, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James William Washington appeals his conviction for
possession with intent to distribute cocaine base in violation of
21 U.S.C. § 841(a)(1) (2000), possession of marijuana in violation
of 21 U.S.C. § 844(a) (2000), and felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) (2000). Finding no error, we
affirm.
Washington argues that the district court erred in
denying his motion to suppress. This court reviews the factual
findings underlying a motion to suppress for clear error, and the
district court’s legal determinations de novo. See Ornelas v.
United States, 517 U.S. 690, 699 (1996). When a suppression motion
has been denied, this court reviews the evidence in the light most
favorable to the government. See United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998).
Washington claims that Detective Wendy Lewis
misrepresented the source of the information in her search warrant
affidavit when she indicated a “personal knowledge” of the facts
instead of noting that the source of the information was an
informant, Nykeia Washington (“Nykeia”). A defendant is entitled
to a hearing on the validity of the search warrant affidavit under
Franks v. Delaware, 438 U.S. 154 (1978), if he “makes a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
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included by the affiant in the warrant affidavit, and . . . the
allegedly false statement is necessary to the finding of probable
cause.” Id. at 155-56. A claim that the affiant was negligent or
made an innocent mistake is inadequate to obtain a hearing on the
validity of a search warrant. Id. at 171.
Washington argues that Detective Lewis had no personal
knowledge of the facts and circumstances because she was not
present when the event occurred and she received all of her
information from outside sources. Detective Lewis testified that
she checked the “personal knowledge” section of the affidavit
because the local practice was that the “informer” portion of the
affidavit is only used when there is a confidential informant.
Further, she did not check the “informer” box because in her
experience she did not have to check this box for a witness, such
as Nykeia, who was not a confidential informant. This testimony is
amply supported by the district court’s conclusion that Detective
Lewis had no intent to mislead the judge.
Detective Lewis also did not show a reckless disregard
for the truth because she identified Nykeia as the source of the
critical information in the affidavit.1 The affidavit provided
that “Ms. Washington stated that James Washington went to a small
1
Although the affidavit is based on evidence that would be
classified as hearsay, reliance on hearsay is acceptable in the
context of a warrant application. Fed. R. Crim. P. 41(c)(1);
United States v. Ventresca, 380 U.S. 102 (1965).
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black vehicle parked in the driveway and came back with a small
black gun. She states that he pointed the gun at her and her
friends and stated that he was going to kill [them].” Although
Detective Lewis failed to properly identify Nykeia as the source of
the other occurrences surrounding the confrontation with
Washington, that failure does not rise to the level of reckless
disregard for the truth, as Detective Lewis did identify Nykeia as
the source of the information about Washington. Mere negligence in
not fully identifying Nykeia as the source is inadequate to justify
a Franks hearing. Franks, 438 U.S. at 171.
Washington also argues that Lewis did not establish the
credibility of the informant. Detective Lewis did not intend to
misrepresent Nykeia’s credibility because the affidavit
specifically identified Nykeia as the source of the information
about Washington, and any omission does not rise to the level of
reckless disregard for the truth. Franks, 438 U.S. at 155-56. As
the district court did not err in its misrepresentation
determination, it did not need to consider Lewis’ failure to
include Nykeia’s credibility on the warrant application, and it
correctly denied Washington’s request for a Franks hearing.
Washington also claims that the warrant was not supported
by probable cause. In reviewing the propriety of issuing a search
warrant, the relevant inquiry is whether, under the totality of the
circumstances, the issuing judge had a substantial basis for
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concluding that there was probable cause to issue the warrant.
Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts presented
to the issuing judge need only convince a person of reasonable
caution that contraband or evidence of a crime will be found at the
place to be searched. Texas v. Brown, 460 U.S. 730, 742 (1983).
Probable cause is a “flexible, common sense” standard. Id.
Because Lewis did not obtain the warrant until three
weeks after the occurrence of the incident, Washington claims the
information in the warrant was stale. To determine staleness, the
court must examine all relevant facts and circumstances, including
“the nature of the unlawful activity alleged, the length of the
activity, and the nature of the property to be seized.” United
States v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984). The passage
of time in itself is not necessarily dispositive because “probable
cause cannot be quantified by simply counting the number of days
the occurrence of the facts supplied and the issuance of the
affidavit.” Id. The information in the warrant is not stale if
the evidence sought is “intrinsically likely to remain at the
location where it was originally observed.” Id. at 1337.
Detective Lewis reasonably used the relatively short time span of
three weeks between the incident and obtaining the warrant to
conduct her investigation. The handgun sought by the warrant was
likely to remain in the possession of Washington in his car or
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house. Based on a totality of the circumstances, the information
in the warrant was not stale.
The warrant does not provide any evidence connecting the
gun to the house, where it was found during the search, and
Washington argues that there was no probable cause to search his
house for the gun.2 “[T]he nexus between the place to be searched
and the items to be seized may be established by the nature of the
item and the normal inferences of where one would likely keep such
evidence.” United States v. Anderson, 851 F.2d 727, 729 (4th Cir.
1988). A “warrant is not invalid for failure to produce direct
evidence that the items to be seized will be found at a particular
location.” Lalor, 996 F.2d at 1582. The warrant did say the gun
was in the car parked next to the house, and there was a
substantial nexus between that car and the house. Evidence of
geographic proximity between the location of known illegal activity
or contraband and the place to be searched may demonstrate the
required nexus. Id. at 1583. It was reasonable for the judge
issuing the warrant to conclude that Washington kept the gun in the
car or in the house as those are the places where one would
normally keep a gun.
2
The warrant identified the house as the place to be searched
for the gun.
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On this record, we conclude the district court correctly
denied Washington’s motion to suppress and admitted the evidence
seized pursuant to the warrant.
Accordingly, we affirm Washington’s conviction and
sentence. 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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