UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 in Windsor Mill, Maryland (“the
apartment”). The district court denied the motion. Rich
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 conclusions de novo. United States v. Kelly,
592 F.3d 586, 589 (4th Cir.), cert. denied, 130 S. Ct. 3374
(2010). When evaluating the denial of a suppression motion, we
construe the evidence in the light most favorable to the
Government, the prevailing party below. Id. This court reviews
the validity of a search warrant under the totality of the
circumstances, determining whether the issuing judge had a
substantial basis for finding there was probable cause to issue
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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
the issuing judge. United States v. Allen, 631 F.3d 164, 173
(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 the issuance of a search warrant for the
apartment. 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. They recovered several cell phones and $733 in
cash. A K-9 scan of the vehicle indicated the presence of
narcotics. Under the totality of the circumstances, we hold
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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 a Franks * hearing because Baltimore detective Brian
Shutt’s affidavit contained a false statement that Shutt saw
Rich leave the apartment. Rich asserts that Shutt’s
representation “failed to disclose facts that would allow a
neutral magistrate to determine whether there was 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 cause was knowingly and intentionally, or with
reckless disregard for the truth, included in the warrant
affidavit. 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 at 663 (internal quotation marks and
alterations omitted). Where a defendant attacks an affidavit
*
Franks v. Delaware, 438 U.S. 154 (1978).
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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. Rich was under surveillance
as he exited the building. Based on a comparison with other
buildings, Shutt was able to determine that the balcony belonged
to the apartment at issue. Although Shutt’s affidavit omitted
the intermediate steps that enabled him to identify the
apartment, the omission was neither material, designed to
mislead, nor made in reckless disregard of whether it 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
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