United States v. Ross

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

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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:

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 [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

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