UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4288
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WHITNEY REANNE KENT,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:14-cr-00088-1)
Argued: March 24, 2016 Decided: June 14, 2016
Before DIAZ and HARRIS, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Harris wrote the
opinion, in which Judge Diaz and Judge Gibney joined.
ARGUED: Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. Joshua Clarke Hanks,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee. ON BRIEF: Christian M. Capece, Federal Public
Defender, Jonathan D. Byrne, Research & Writing Specialist,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PAMELA HARRIS, Circuit Judge:
This case began when United States Postal Inspector Joshua
Mehall briefly detained a package addressed to appellant Whitney
Kent. That detention was based on characteristics that Mehall
deemed suspicious, as well as a tip from Detective Justin
Hackney, a canine handler for the Charleston, West Virginia
Police Department. After Hackney’s dog alerted to the package,
Mehall obtained a search warrant, opened the package, and
discovered illicit oxycodone pills.
After she was indicted, Kent moved to suppress the evidence
uncovered by Mehall, challenging both the initial detention of
the package and the warrant authorizing its search. Kent also
sought to cross-examine Hackney, whom the government had
declined to call as a witness. The district court denied Kent’s
suppression motions and did not require Hackney to testify. We
find no error in those rulings and affirm.
I.
A.
On December 5, 2012, Inspector Mehall, working at the
Charleston, West Virginia post office, detained a package
addressed to Whitney Kent. Mehall detained Kent’s package for
the following reasons: (1) it was an Express Mail envelope with
a handwritten label sent person-to-person, which Mehall found to
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be unusual; (2) the package was not “perfectly flat,” J.A. 221,
suggesting that it might contain something other than paper;
(3) the package was sent from New Jersey, which, according to
Mehall, was a “source state[]” for drugs in West Virginia, J.A.
199; and (4) the name of the return addressee was not associated
with the return address in Accurint, a database drawing from
publicly available records. In addition, Detective Hackney, a
Charleston Police Department canine handler who was assisting
Mehall, informed Mehall that he recognized Kent’s name from
other drug-related investigations.
Outside of Hackney’s presence, Mehall created a lineup
consisting of Kent’s parcel and several pre-made “blank”
packages. Hackney then ran his dog, Peanut, through the lineup.
Mehall observed Peanut sit in front of the package addressed to
Kent and refuse to move until Hackney rewarded her. Hackney
informed Mehall that Peanut had alerted to Kent’s package.
Mehall applied for a warrant to open and search the
package. In the affidavit in support of the warrant
application, Mehall cited Peanut’s alert, the characteristics of
the package, and Hackney’s statement about recognizing Kent’s
name. He also described Peanut as “a trained narcotic detection
dog.” J.A. 66. Mehall received the warrant, opened the
package, and discovered illicit oxycodone pills.
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Mehall arranged a controlled delivery to Kent, and Kent
came to the Charleston post office to retrieve the package.
After Kent signed for the package, Mehall and Hackney approached
her and identified themselves. Kent admitted that the package
contained oxycodone pills and stated that they were intended for
her boyfriend. At that point, Hackney arrested Kent.
It is uncontested that about a month after Kent’s arrest,
Hackney fabricated a dog-sniff report in a separate case. The
falsity of that report was discovered more than a year later, in
connection with the prosecution to which it was related.
B.
Kent was indicted in the Southern District of West Virginia
for knowingly and intentionally possessing with intent to
distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1).
She filed two motions to suppress the parcel and its contents.
In one, she challenged the initial detention of the package,
arguing that it violated the Fourth Amendment because it was not
supported by the requisite reasonable suspicion. In the other,
she challenged the search warrant itself, questioning the
veracity of the affidavit Mehall submitted in support of his
warrant application.
With respect to Mehall’s affidavit, Kent argued, first,
that the assertion that Peanut was “a trained narcotic detection
dog” was made with “reckless disregard for the truth.” J.A. 36
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(emphasis omitted); see Franks v. Delaware, 438 U.S. 154, 156,
171 (1978) (defendant challenging warrant affidavit must show
that it contains a “deliberate falsehood” or a statement made
with “reckless disregard for the truth” that is “necessary to
the finding of probable cause”). According to Kent, though
Peanut was trained and certified for narcotics detection, she
had not been trained to alert to oxycodone pills specifically,
and Hackney knew that when the search warrant was obtained.
Second, Kent argued that Hackney’s lack of credibility
undermined the reliability of his statements to Mehall,
including his report — transmitted by Mehall in his affidavit —
that Peanut had alerted to the package.
The district court held a hearing on Kent’s suppression
motions on January 6, 2015. The government called Mehall, but
not Hackney, as a witness. Kent called numerous witnesses,
including the president and the records custodian of the
organization that certified Hackney to handle Peanut, an expert
in canine training and supervision, a pharmacology expert, and
the original owner and trainer of Peanut. Through this
testimony, Kent attempted to cast doubt on the quality of
Peanut’s training and the integrity of the package lineup,
ostensibly to show that a false statement had been included in
the warrant affidavit. She also argued that she should be
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permitted to question Hackney, because his credibility was
central to her case.
The district court acknowledged that Hackney’s credibility
might be questionable, but it expressed doubt that those
credibility issues — discovered only after the events in
question — were relevant to this case. The court took Kent’s
request to question Hackney, the Franks issue, and the other
matters addressed in the hearing under advisement.
On January 30, 2015, the district court denied Kent’s
motions to suppress. The court found that Mehall had reasonable
suspicion to detain the package and conduct the dog sniff based
on his observations about the physical characteristics of the
package and the return address mismatch. The court further
noted that Hackney’s statement about recognizing Kent’s name
lent support to Mehall’s decision, but it found that Mehall had
reasonable suspicion to detain the package even without
Hackney’s comment.
The court also concluded that Kent had not made the showing
that, under Franks, would entitle her to an evidentiary hearing
on the veracity of Mehall’s affidavit. See 438 U.S. at 156.
With respect to the affidavit’s assertion that Peanut was a
“trained narcotic detection dog,” the court found no material
falsity, and rejected Kent’s argument as suffering from
“hindsight bias,” J.A. 523: Mehall and Hackney sought a warrant
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for contraband in general, not for oxycodone pills in
particular, so whether Peanut was trained to detect oxycodone
was not relevant to the probable cause determination. As to
Hackney’s credibility regarding Peanut’s alert, the court held
that Mehall “could have been neither deliberate nor reckless” in
relaying Hackney’s report of an alert, given that Hackney’s
false dog-sniff report was not uncovered until after the events
in question. J.A. 524. The court never required Hackney to
testify, although it did not separately deny Kent’s request nor
address a supplemental memorandum Kent had filed on the matter.
A few days after the district court denied her motions,
Kent pleaded guilty to the indictment. She was sentenced to
five years of probation, with the first six months to be served
on home confinement. Kent’s plea was conditional, however, and
she reserved the right to appeal the order denying her motions
to suppress. This timely appeal followed.
II.
We review the district court’s findings of fact on a motion
to suppress for clear error and its legal conclusions de novo.
United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010). “In
so doing, we must construe the evidence in the light most
favorable to the prevailing party, and give due weight to
inferences drawn from those facts by resident judges and law
8
enforcement officers.” Id. (citations and internal quotation
marks omitted). We review the district court’s conclusions as
to the relevance of evidence for an abuse of discretion. United
States v. Parker, 262 F.3d 415, 420 (4th Cir. 2001).
A.
The Fourth Amendment’s protection against unreasonable
searches and seizures extends to letters and sealed packages,
which are part of “the general class of effects in which the
public at large has a legitimate expectation of privacy.”
United States v. Jacobsen, 466 U.S. 109, 114 (1984). A package
may be detained briefly for investigative purposes, but only if
there is reasonable suspicion that it contains contraband. See
United States v. Van Leeuwen, 397 U.S. 249, 252–53 (1970); cf.
United States v. Place, 462 U.S. 696, 706 (1983) (detention of
luggage). As with the detention of an individual, reasonable
suspicion in this context requires a “particularized and
objective basis for suspecting legal wrongdoing” under “the
totality of the circumstances.” See United States v. Arvizu,
534 U.S. 266, 273 (2002) (citation and internal quotation marks
omitted) (detention of “persons or vehicles”); see also United
States v. Gomez, 312 F.3d 920, 924 (8th Cir. 2002) (detention of
mail); United States v. Gill, 280 F.3d 923, 928 (9th Cir. 2002)
(same).
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Here, Mehall’s first-hand observations, in conjunction with
Hackney’s statement that he recognized Kent’s name from other
drug-related investigations, supplied the reasonable suspicion
necessary to detain the package. As the district court
explained, by virtue of his training and experience, Mehall was
able to “flag” certain characteristics of Kent’s package as
unusual or otherwise consistent with the presence of drugs: the
package was sent by Express Mail individual-to-individual,
rather than business-to-business, as is more often the case; it
had a handwritten label, rather than the more common typed
label; the name of the return addressee was not associated with
the return address in the Accurint database; it originated from
New Jersey, one of “six to eight known source states for drugs
arriving in West Virginia”; and the package’s size would
accommodate “more than just paper.” J.A. 515. And while it
surely is true, as Kent contends, that none of that is
inconsistent with innocent activity, it also is true that even
innocent factors, taken together, may add up to reasonable
suspicion. See United States v. Digiovanni, 650 F.3d 498, 511
(4th Cir. 2011) (citing United States v. Sokolow, 490 U.S. 1, 9
(1989)).
We need not decide whether Mehall’s observations alone
would give rise to reasonable suspicion, as the district court
concluded, because here we also have another factor: Hackney’s
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statement to Mehall that he recognized Kent’s name from prior
drug-related investigations. While this statement alone may
have been insufficient to furnish reasonable suspicion, it
provided an additional and particularized detail about Kent’s
package that, under the totality of the circumstances, justified
Mehall’s decision to detain the package for a brief
investigation. Cf. United States v. Lakoskey, 462 F.3d 965,
969–70, 976 (8th Cir. 2006) (finding reasonable suspicion to
detain Express Mail package with handwritten label sent from
drug source state where return addressee’s name was fictitious
and the inspector had received a tip to watch for drug shipments
to defendant). 1 Accordingly, we affirm the district court’s
denial of Kent’s motion to suppress for lack of reasonable
suspicion.
B.
Kent’s second claim is that the warrant for the ultimate
search of her package was issued without the requisite probable
1
In determining whether reasonable suspicion existed, we
consider the “facts within [Mehall’s] knowledge” when the
package was detained. See United States v. Powell, 666 F.3d
180, 186 (4th Cir. 2011) (“The reasonable suspicion standard is
an objective one, so we examine the facts within the knowledge
of [the officer] to determine the presence or nonexistence of
reasonable suspicion.” (citation and internal quotation marks
omitted)). At that time, Mehall had no reason to doubt
Hackney’s credibility, and Hackney’s statement therefore
supported Mehall’s objectively reasonable suspicion.
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cause. Kent does not contest that on its face, the affidavit
submitted with the warrant application — relying on Peanut’s
alert to the package, as well as Mehall’s observations of the
package and Hackney’s recognition of Kent’s name — supported a
probable cause finding. Instead, Kent challenges the veracity
of Mehall’s affidavit, claiming that it includes deliberately or
recklessly falsified information material to the probable cause
determination.
In Franks v. Delaware, the Supreme Court set out the
limited circumstances under which a defendant may contest the
presumptive validity of a search-warrant affidavit. 438 U.S. at
155–56. Under Franks, a defendant is entitled to a hearing into
the truth of a warrant affidavit only if she makes a
“substantial preliminary showing,” id. at 155, that “(1) the
warrant affidavit contained a deliberate falsehood or statement
made with reckless disregard for the truth and (2) without the
allegedly false statement, the warrant affidavit is not
sufficient to support a finding of probable cause.” United
States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (citation
and internal quotation marks omitted). That “substantial
preliminary showing” is to be made by way of “[a]ffidavits or
sworn or otherwise reliable statements” submitted by the
defendant as an “offer of proof”; conclusory allegations of
falsity or the “mere desire to cross-examine” a police officer
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are not enough. Franks, 438 U.S. at 171. And unless a
defendant first meets her burden under both the falsity and the
materiality prongs of Franks, she is not entitled to an
evidentiary hearing at which to explore the veracity of a
warrant affidavit. Id. at 171–72; see also United States v.
Tate, 524 F.3d 449, 454 (4th Cir. 2008) (describing defendant’s
burden as a “heavy one to bear”).
We agree with the district court that Kent did not make the
threshold showing that would entitle her to a Franks hearing.
First, the evidence of Peanut’s training and certification to
detect marijuana, cocaine, heroin, and methamphetamine —
evidence that Kent herself introduced before the district
court — is enough to show that the affidavit’s description of
Peanut as a “trained narcotic detection dog” was not
deliberately or recklessly false. And even if, as Kent
contends, Peanut was not trained to detect oxycodone pills in
particular, omission of that information was not material to the
magistrate’s probable cause determination, as required under
Franks. As the district court explained, Mehall’s affidavit
asserted probable cause to search for controlled substances
generally, not oxycodone specifically, and Peanut’s alert to the
package was enough to establish probable cause that some
controlled substance was inside. See United States v. Robinson,
707 F.2d 811, 815 (4th Cir. 1983) (alert by dog trained to
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detect marijuana, cocaine, and heroin establishes probable cause
and “the fact that a different controlled substance was actually
discovered does not vitiate the legality of the search”).
Whatever the perspective from hindsight, at the time the warrant
issued, a clarification that Peanut’s training did not include
oxycodone would have been immaterial to the magistrate’s
probable cause determination.
As to the second challenged assertion in the affidavit —
that Peanut alerted to Kent’s package — Kent cannot make the
requisite “substantial preliminary showing” of falsity. See
Franks, 438 U.S. at 155. For the falsity of Mehall’s account of
an alert, Kent relies exclusively on questions about the
credibility of Hackney, who made the official determination that
Peanut had alerted and transmitted that determination to Mehall
for use in the affidavit. But although Mehall acknowledged that
only Hackney was qualified to pronounce a dog alert, he also
testified that he was familiar with Peanut’s behavior in
lineups, having “seen Peanut run a parcel line-up numerous
times,” and that on this particular occasion, the dog “stopped
at the subject package and would not move off of it until
[Hackney] rewarded her.” J.A. 202. Mehall’s independent
observations thus corroborated Hackney’s report, and Kent has
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done nothing to put at issue the credibility of Mehall, as
opposed to Hackney. 2
On appeal, rather than contesting these points directly,
Kent argues primarily that the district court abused its
discretion by not requiring Hackney to testify before denying
her a Franks hearing. Only by calling Hackney as a witness and
impeaching his credibility, Kent contends, could she effectively
challenge the veracity of Mehall’s affidavit. But this puts the
cart before the horse: Only after making the “substantial
preliminary showing” of falsity and materiality outlined by
2
The government argues, and the district court appeared to
agree, that Kent would not be entitled to a Franks hearing even
if she could make a substantial preliminary showing that Hackney
intentionally fabricated Peanut’s alert, so long as Mehall, the
affiant, did not know or have reason to know that he was
transmitting false information to the magistrate. We do not
endorse that position. The Supreme Court in Franks described
itself as having adopted the “premise that police could not
insulate one officer’s deliberate misstatement merely by
relaying it through an officer-affiant personally ignorant of
its falsity.” See 438 U.S. at 163 n.6 (discussing Rugendorf v.
United States, 376 U.S. 528 (1964)). And courts have relied on
that premise to hold that a defendant may be entitled to relief
under Franks if an officer deliberately or recklessly causes a
falsehood to appear in an affidavit, even if the affiant him or
herself is not at fault. E.g., United States v. Shields, 458
F.3d 269, 276 (3rd Cir. 2006) (“[I]t is beyond question that the
police cannot insulate a deliberate falsehood from a Franks
inquiry simply by laundering the falsehood through an unwitting
affiant who is ignorant of the falsehood.”); United States v.
Brown, 298 F.3d 392, 408 (5th Cir. 2002) (“[A] defendant is
entitled to a Franks hearing upon making a substantial
preliminary showing that a government official deliberately or
recklessly caused facts that preclude a finding of probable
cause to be omitted from a warrant affidavit, even if the
governmental official at fault is not the affiant.”).
15
Franks would Kent have been entitled to an evidentiary hearing
at which she could call and cross-examine Hackney about his
veracity. See Franks, 438 U.S. at 158–60 (discussing
defendant’s request to call police officer as witness to
challenge veracity); id. at 171–72 (preliminary Franks showing
must be made before defendant is entitled to a hearing). In any
event, whether or not Hackney’s statements could be trusted,
there was sufficient independent evidence to corroborate both
the nature of Peanut’s training and the existence of an alert to
Kent’s package. To the extent that Kent’s request to compel
Hackney’s testimony may be understood as something separate and
apart from her underlying request for a Franks hearing, the
district court did not abuse its discretion in denying it. 3
III.
Like the district court, we recognize that Kent has
identified a serious concern about Hackney’s credibility, which
may have significant ramifications in other cases. But the
district court did not err in holding that in this case, Kent
could not make a substantial showing that Mehall’s affidavit
3The government contends that Kent is barred from a
separate challenge to the denial of her request for Hackney’s
testimony because her plea agreement preserved only her right to
appeal the denial of her motions to suppress. For purposes of
this appeal, we assume without deciding that Kent’s conditional
plea did not foreclose her claim regarding Hackney’s testimony.
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included knowingly or recklessly false information material to
the probable cause determination. Nor did the court err in
concluding that Mehall possessed reasonable suspicion to detain
Kent’s package in the first place. Accordingly, we affirm the
judgment of the district court.
AFFIRMED
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