KING, Circuit Judge:
Defendant Terrell Allen appeals from his conviction in the District of Maryland for contravening 18 U.S.C. § 922(g)(1) by knowingly possessing ammunition after having been convicted of a felony. On appeal, Allen maintains that evidence used against him should have been suppressed and that he was erroneously denied a Franks hearing concerning a search warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (holding that, in limited circumstances, accused is entitled to evidentiary hearing on veracity of search warrant affidavit). After the district court declined to suppress the evidence and denied his request for a Franks hearing, Allen entered a conditional guilty plea to a single § 922(g)(1) offense, reserving his right to appeal the court's adverse suppression rulings. As explained below, we affirm.
On July 9, 2008, a grand jury in the District of Maryland returned a single count indictment against Allen, charging that he had contravened 18 U.S.C. § 922(g)(1) by knowingly possessing a .44 caliber revolver after having been convicted of a felony (the "Firearm Offense"). A
Allen filed pretrial motions seeking suppression of the evidence underlying both counts of the superseding indictment, and also requesting that the district court conduct a Franks hearing on the veracity of information contained in the search warrant affidavit leading to the seizure of the revolver. After the court denied his suppression motions, Allen entered a conditional guilty plea — reserving his right to appeal the court's adverse suppression rulings.
The events leading to the warranted seizures of the .44 revolver and the ammunition serve as the factual predicate of this appeal and are not in dispute. At approximately 6:00 p.m. on May 15, 2008, Baltimore police officers responded to calls relating to multiple shootings in the street outside the AFA Store, which was owned and operated by Allen and his family. Allen, along with his father, his half-brother, and a man named Reginald Davis, were apparently attending a barbeque outside the Store when the shootings occurred; all four were shot and taken to nearby hospitals. Allen and Davis survived, but Allen's father and half-brother died.
"Shooting detectives" of the Baltimore Police Department were the first officers to respond to the firefight near the AFA Store.
At the crime scene, Detective Niedermeier observed approximately twenty spent shell casings and fragments that were strewn about the area, indicating that multiple firearms had been discharged in the firefight. Niedermeier also observed several blood trails, one of which led directly into the AFA Store. He followed the blood trail inside the Store, which led to a filing cabinet. One of the cabinet's drawers was slightly ajar, and Niedermeier opened it and observed a silver revolver. He promptly relayed this information to the shooting detectives at the scene.
In the aftermath of these events, the Baltimore and federal authorities sought and obtained three separate search warrants: (1) the first warrant, issued on the evening of the fire-fight, authorized a search of the AFA Store for firearms and other evidence (the "First Warrant"); (2) the second warrant, issued on June 3, 2008, authorized the collection of Allen's DNA (the "Second Warrant"); and (3) the third warrant, issued on June 30, 2008,
On May 15, 2008, the date of the firefight, Baltimore Detective Chris Wade sought and obtained the First Warrant from a state court judge. The First Warrant authorized the search of the AFA Store for firearms, DNA, and other evidence related to the shootings that occurred outside the Store. Wade had not personally been to the crime scene, and much of the information included in his affidavit had been relayed from officers on the scene. Wade's affidavit accurately described the multiple victims, the many shell casings, and various other aspects of the crime scene outside the Store. The affidavit also related the following:
J.A. 36.
Three weeks later, on June 3, 2008, Detective Niedermeier sought and obtained the Second Warrant, also from a state court judge, authorizing the seizure of DNA samples from Allen. The affidavit supporting the Second Warrant detailed the chaotic scene outside the AFA Store following the shootings, and explained that the .44 revolver and DNA samples had been seized during the warranted search of the Store. The affidavit specified that Niedermeier had observed a silver revolver in a filing cabinet at the Store before the revolver was seized:
J.A. 60. The Second Warrant was executed on June 5, 2008, and Allen's DNA was obtained. His DNA matched that found on the revolver seized from the Store and, as a result, Allen was charged with the Firearm Offense.
On June 30, 2008, ATF Agent Noah Slackman sought and obtained the Third Warrant, from a federal magistrate judge, authorizing the search of Allen's residence for firearms and related paraphernalia. Slackman's affidavit specified that the home on Punjab Circle in Baltimore County was Allen's residence, detailed Allen's prior felony convictions, recounted the
The federal magistrate judge issued the Third Warrant on June 30, 2008, and it was executed on July 1, 2008. A box of ammunition was seized from the Punjab Circle residence during the search, and, as a result, Allen was charged with the Ammunition Offense.
In pretrial proceedings in the district court, Allen sought suppression of the evidence seized pursuant to the three search warrants. In regard to the .44 revolver and DNA recovered from the AFA Store, Allen maintained that Detective Niedermeier's opening of the cabinet drawer constituted an unconstitutional search not justified by any exception to the Fourth Amendment's warrant requirement, and that Niedermeier's observation of the silver revolver in the drawer prompted the decision of the authorities to seek the First Warrant. Thus, Allen asserted that the revolver and DNA (seized pursuant to the First Warrant), as well as Allen's DNA (obtained pursuant to the Second Warrant), should be suppressed. Additionally, Allen maintained that the conflicts between Detective Wade's affidavit supporting the First Warrant and Niedermeier's affidavit supporting the Second Warrant — that is, the revolver being in plain view (according to Wade) but inside a closed filing cabinet drawer (according to Niedermeier) — justified a Franks hearing. Finally, Allen sought to suppress the ammunition seized from his Punjab Circle residence because Agent Slackman's affidavit supporting the Third Warrant was tainted by the constitutional infirmities of the First and Second Warrants. Allen also asserted that the affidavit failed to show a nexus between the Punjab Circle residence and the items to be seized, and that the affidavit failed to establish probable cause.
In responding to the Allen's suppression motions, the prosecution conceded that Niedermeier "went outside the scope of the exigent circumstances exception to the warrant requirement" by opening the filing cabinet drawer in the AFA Store. J.A. 43. The prosecution maintained, however, that suppression of the revolver was not warranted because it would have been discovered inevitably in any event. The prosecution also maintained that a Franks hearing was not required because Wade's affidavit — which accurately described the crime scene and blood trails leading into the AFA Store — provided sufficient probable cause for the First Warrant, even with the statements about the revolver excised.
On May 15, 2009, the district court conducted a hearing on Allen's suppression motions. The prosecution called Detective Niedermeier to testify, and he related that he had arrived at the crime scene about twenty minutes after the responding officers requested assistance from the homicide unit. Niedermeier described the chaotic scene of the shootings and recounted following a blood trail into the AFA Store. Niedermeier explained that he did not know whether other officers had already been inside the Store, but that his duties include searching a crime scene for victims and suspects. He agreed, however, that he followed the blood trail into the Store to gather evidence and to determine "what had happened because these four individuals had been shot." J.A. 92. Niedermeier explained that the silver revolver was observed inside a cabinet drawer, and was not in plain view as stated in Detective Wade's affidavit. Niedermeier also said, however, that he had never spoken directly to Wade about the revolver and had advised the other officers at the scene "just generally" about it. Id. at 93.
After Detective Niedermeier testified, the district court denied Allen's motion to suppress the .44 revolver, as well as his request for a Franks hearing. The court explained that such relief was not warranted because the revolver would inevitably have been found and the "inevitable discovery rule trumps." J.A. 102. The court explained that "clearly you've got a shooting scene there, you've got blood going inside, clearly what you're going to do is get a warrant. And that would have happened, and the gun would have been found." Id. at 100. Furthermore, and even if "you excise all [references to the revolver in Detective Wade's affidavit] it seems to me that you still got probable cause." Id. at 101. After this ruling, Allen conceded that "if the [F]irst [W]arrant stands, then quite obviously the [S]econd [W]arrant would stand as well." Id. at 102.
Moving to the Third Warrant, Allen requested suppression of the ammunition seized during the warranted search of his Punjab Circle residence. Allen maintained that the information supplied by the CI in Agent Slackman's affidavit constituted "puffing," and that the affidavit was facially insufficient to show probable cause for a search of the Punjab Circle residence. J.A. 106. From the bench, the district court denied Allen's motion to suppress and concluded that Slackman's affidavit contained sufficient probable cause for issuance of the Third Warrant:
Id. 107-08.
On September 1, 2009, after his suppression motions and request for a Franks
Allen has timely noted this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
We assess de novo the legal determinations underlying a district court's suppression rulings, including the denial of a Franks hearing, and we review the court's factual findings relating to such rulings for clear error. See United States v. Blatstein, 482 F.3d 725, 730 (4th Cir. 2007). A determination of probable cause is an issue of law that is reviewed de novo. See United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir.1996).
On appeal, Allen makes three contentions. First, he maintains that the district court erred in denying his request for a Franks hearing on the inaccurate statements contained in Detective Wade's affidavit supporting the First Warrant. Second, he asserts that the First Warrant is void because Detective Niedermeier's warrantless entry into the AFA Store was not justified by exigent circumstances.
Allen contends that the district court erred in denying his request for a Franks hearing. More specifically, he maintains that the inaccurate statements in Detective Wade's affidavit supporting of the First Warrant — i.e., that the firearm in the AFA Store was in "plain view" — were included intentionally or recklessly. With those statements excised, according to Allen, the affidavit would not support a probable cause determination.
An accused is generally 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, whereby an accused is entitled to an evidentiary hearing on the veracity of statements in the affidavit. See 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To be entitled to a Franks hearing, however, the accused must make a substantial preliminary showing that false statements were either knowingly or recklessly included in an affidavit supporting a search warrant and that, without those false statements, the affidavit cannot support a probable cause finding. See id. Therefore, if the allegedly false statements are not necessary for the probable cause finding, the accused is not entitled to a Franks hearing. See id.
Applying the foregoing principles, it is apparent that the inaccurate statements in Detective Wade's affidavit about the revolver in the AFA Store being in plain view were unnecessary to the probable cause determination. Assuming that Wade falsely or recklessly made those statements and sought to mislead the state court judge, his affidavit nevertheless makes an ample showing of probable cause for issuance of the First Warrant. Specifically, the affidavit described the chaotic scene of the quadruple shootings in the street near the AFA Store, which was littered with shell casings and fragments, and multiple blood trails (including the trail leading inside the Store). This information alone — without reference to the revolver observed in the filing cabinet — is sufficient to establish probable cause that evidence related to the shootings would probably be found inside. Because any inaccurate statements in Wade's affidavit were unnecessary for the probable cause finding, the district court did not err in denying Allen's request for a Franks hearing.
Next, Allen maintains that the .44 revolver should have been suppressed because Detective Niedermeier's initial entry into the AFA Store — following a trail of blood — was unconstitutional. Allen argues that Niedermeier's testimony at the suppression hearing indicates that the true motivation behind his initial entry into the Store was to gather evidence, rather than look for other victims or suspects. Allen contends that, because Niedermeier's initial entry was unconstitutional, everything in Detective Wade's affidavit that flowed from the illegal entry — the revolver and the locations of the trails of blood inside the Store — should be excised from the affidavit. Allen asserts that when such information is excised, the affidavit is facially deficient and the revolver must be suppressed. This contention, however, suffers from the same infirmities as Allen's contention regarding his entitlement to a Franks hearing.
In his final appellate contention, Allen argues that the district court erred in declining to suppress the ammunition seized from his Punjab Circle residence. Allen contends that the ammunition seized under the Third Warrant is inextricably intertwined to his claim that the revolver should have been suppressed. Allen contends that much of the information included in Agent Slackman's affidavit — principally the silver revolver seized at the AFA Store and linked to Allen — is constitutionally tainted and must be excised. Such an assertion fails, however, because the revolver was legally seized. Thus, Allen's contention that Slackman's affidavit is defective because it contains constitutionally tainted information must be rejected.
Allen makes three additional points concerning the Third Warrant: (1) that Slackman's affidavit for the Third Warrant fails to support a probable cause finding; (2) that the information supplied the by CI was not sufficiently corroborated; and (3) that the affidavit did not show a nexus between the Punjab Circle residence and the items to be seized. As explained above, however, a judicial officer issuing a search warrant must simply make a practical, commonsense determination — based on the totality of the circumstances revealed in the affidavit — of whether there is a substantial likelihood that evidence of a crime will be found in a particular place. See Gates, 462 U.S. at 230-31, 103 S.Ct. 2317; United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005). Additionally, "the 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." Richardson, 607 F.3d at 371 (internal quotation marks omitted). In assessing the probable cause determination concerning the Third Warrant, we accord great deference to the issuing judge's assessment of the facts presented. See
Put simply, Agent Slackman's affidavit supporting the Third Warrant provided probable cause to believe that Allen possessed firearms at his Punjab Circle residence. The affidavit related that Allen was a convicted felon; that Allen resided at the Punjab Circle residence; that two members of Allen's family had been killed in the May 15, 2008 shootings on Gay Street; and that a revolver containing Allen's DNA was recovered at the scene. Importantly, the affidavit also contained information from a reliable CI that the shootings had been committed by Allen's drug rivals in response to a kidnapping, and that Allen and his supporters were armed to do violence against the perpetrators of the shootings. Indeed, Allen has conceded that Slackman's affidavit established the reliability of the CI. See J.A. 103; Br. of Appellant 19.
According appropriate deference to the magistrate judge who issued the Third Warrant, Agent Slackman's affidavit establishes probable cause for a search of the Punjab Circle residence for firearms, and thus the nexus between the place to be searched and the items to be seized was established. Accordingly, we reject Allen's contention that the district court erred by denying his motion to suppress the ammunition underlying his conviction on the Ammunition Offense.
Pursuant to the foregoing, we reject Allen's appellate contentions and affirm.
AFFIRMED.