United States v. Patterson , 173 F. App'x 283 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT EDWARD PATTERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CR-04-49)
Submitted: March 21, 2006 Decided: March 31, 2006
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey B. Welty, Durham, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
After entering a conditional guilty plea to possession of a
firearm by a prior felon, Robert Edward Patterson now appeals the
district court’s denial of his motions for an evidentiary hearing
regarding an allegedly defective search warrant pursuant to Franks
v. Delaware, 438 U.S. 154 (1978), and to suppress the firearms
seized under the warrant. Because we conclude that, even after
excising the challenged portions of the warrant, the warrant is
supported by probable cause, we affirm.
I.
On March 19, 2002, Agent Kelly H. Fields of the Harnett County
Sheriff’s Office filed a search warrant application for Patterson’s
residence in Broadway, North Carolina. In his warrant affidavit,
Agent Fields attested that a reliable confidential informant
observed a quantity of marijuana at Patterson’s residence within
the preceding seventy-two hours. Following the issuance of the
warrant, the officers seized, among other things, several plastic
bags containing pills, marijuana, and bullets from Patterson’s
residence. Ultimately, however, the charges arising from the drugs
and associated paraphernalia were dismissed in North Carolina state
court on September 3, 2002.
On November 7, 2003, Lieutenant John C. Holly of the Harnett
County Drug Task Force prepared a second search warrant application
2
for Patterson’s residence. In the application, Lieutenant Holly
attested:
Applicant has received more than a dozen complaints
stating that suspect Robert Patterson is selling
Marijuana from his home described in this application.
A review of the suspect’s criminal history indicates that
Robert Patterson has had several drug related arrest[s]
and charges in Harnett County in the past. Applicant has
received information from numerous confidential sources
that indicate suspect Patterson is involved in the
illegal s[ale] and delivery of Marijuana. In addition to
the above, applicant has been contacted by a confidential
source of information, hereafter referred to as CSI,
within 72 hours of the date and time of this application.
The aforementioned CSI reported to applicant that they
have known suspect Patterson for several years and that
they have bought Marijuana from him in the past. The
aforementioned CSI participated in “controlled purchase”
of Marijuana within 72 hours of the date and time of this
application.
J.A. 55. After the issuance of the warrant, the officers seized
six bags containing marijuana, pills, white powder residue, and
rolling paper from Patterson’s residence.
On November 20, 2003, Agent Fields prepared a third search
warrant application, which is the subject of this appeal, for
Patterson’s residence. Agent Fields and two other federal agents
had visited Patterson’s residence earlier in the evening to conduct
a search. When Patterson refused to give consent, the federal
agents detained Patterson while Agent Fields prepared the warrant.
The third warrant application differed from the previous
applications in two significant respects. First, the warrant
application sought permission to seize weapons present at
Patterson’s residence. Second, the warrant application referenced
3
the prior searches. Specifically, Agent Fields attested that the
officers had conducted a search at Patterson’s residence yielding
controlled substances and drug paraphernalia at the first search,
but erroneously recorded the date as March 19, 2003, rather than
March 19, 2002. Agent Fields also described the second search at
Patterson’s residence, stating that he and Lieutenant Holly
observed weapons and had seized controlled substances and drug
paraphernalia.
With respect to the factual predicate for the instant search,
Agent Fields asserted:
ON 11/20/2003 THE HARNETT COUNTY SHERIFF’S OFFICE AND THE
UNITED STATES DEPARTMENT OF JUSTICE BUREAU OF ALCOHOL,
TOBACCO, FIREARMS, AND EXPLOSIVES ARRIVED AT ROBERT
EDWARD PATTERSON[’S] RESIDENCE [LOCATED] AT 407 YANKEE
LANE BROADWAY, NC. WHEN AGENTS ARRIVED AT THE RESIDENCE
AGENT FIELDS OBSERVED ROBERT EDWARD PATTERSON LOOK
THROUGH THE GLASS STORM DOOR AND REMOVE[] AN UNKNOWN
OBJECT FROM HIS FRONT POCKET OF HIS JACKET AND PLACE IT
IN OR AROUND A CABINET WHEN THE AGENTS ARRIVED. AGENT
FIELDS AND LT[.] HOLLY APPROACHED THE RESIDENCE AND A
STRONG ODOR OF MARIJUANA WAS DETECTED COMING FROM INSIDE
THE RESIDENCE. AGENT FIELDS CONDUCTED AN INTERVIEW WITH
JEFFERY HAROLD CAMERON AND CHRISTOPHER JASON THOMAS [WHO]
WERE INSIDE THE RESIDENCE WHEN AGENTS ARRIVED. MR[.]
JEFFERY HAROLD CAMERON STATED THAT MARIJUANA HAD BEEN
SMOKED INSIDE THE RESIDENCE PRIOR TO HIM ARRIVING AT THE
RESIDENCE BUT WAS UNAWARE OF WHO WAS SMOKING THE
MARIJUANA. A CONSENT SEARCH OF MR[.] CHRISTOPHER JASON
THOMAS[’S] VEHICLE REVEALED A PLASTIC BAG CONTAINING 7.5
GRAMS OF MARIJUANA.
J.A. 69. Upon the issuance of the third warrant, the officers
seized several firearms and ammunition, a pill bottle containing
eighty-one endocet pills, a marijuana blunt, a bag filled with
marijuana, and rolling papers from Patterson’s residence.
4
On February 18, 2004, Patterson was formally indicted by a
grand jury for possession of a firearm as a prior felon, in
violation of 18 U.S.C. §§ 922(g)(1) & 924. Patterson subsequently
filed a motion for a Franks hearing and motion to suppress the
evidence obtained during the third (November 20, 2003) search. In
his brief, Patterson asserted that Agent Fields knowingly proffered
false and incomplete information in the third warrant application
with respect to: (1) the date of the first (March 19, 2002) search;
(2) the fact that the drug charges related to the first search had
been dismissed; and (3) the officers’ conversation with Cameron.
Alternatively, Patterson argued that the third warrant was invalid
because it referenced the second warrant, which, according to him,
lacked probable cause. Patterson also contended that the third
warrant was overly broad in authorizing the search and seizure of
weapons. Finally, Patterson claimed that the warrants all stemmed
from Lieutenant Holly’s personal animus against him because
Patterson had dated Lieutenant Holly’s sister and attempted to hit
Lieutenant Holly with a car (resulting in Lieutenant Holly’s
shooting at Patterson).
Patterson submitted the three executed warrants and an
affidavit from his counsel in support of his motions. In his
affidavit, counsel attested that he spoke with Cameron, one of the
individuals identified in the third warrant, who apparently said
that (1) Lieutenant Holly personally disliked Patterson because he
5
had dated Lieutenant Holly’s sister; and (2) there was no smell of
marijuana in the yard on November 20, 2003. According to counsel,
Cameron further stated that when the officers approached
Patterson’s residence on November 20, 2003, they questioned him and
Thomas separately. Cameron claimed that he denied smoking
marijuana with Thomas and Patterson, and that he did not know
whether anyone had been smoking marijuana prior to his arrival at
Patterson’s residence.
On May 7, 2004, the magistrate judge issued a detailed
memorandum and recommendation (“M&R”), which advised that both
motions be denied. First, the M&R found that Patterson failed to
establish that the third warrant contained false statements or
material omissions, or that any such statements or omissions were
necessary to support the probable cause finding. Second, the M&R
concluded that the remaining factual basis underlying the third
warrant supported the probable cause determination. Finally, the
M&R stated that the warrant was not overly broad with respect to
authorizing the seizure of firearms.
Patterson timely filed objections to the M&R, essentially
reiterating his original arguments. For the first time, however,
Patterson submitted the formal affidavits of both Cameron and
Thomas, who confirmed the representations made by Patterson’s
counsel in his affidavit.
6
On June 6, 2004, the district court denied the motions and
adopted the M&R in its entirety. Subsequently, Patterson executed
a conditional plea agreement to the firearm count in the
indictment, reserving his right to appeal the district court’s June
6, 2004 order. The district court accepted the plea. Patterson
now appeals the denial of his pretrial motions.
II.
A.
On appeal, Patterson first attacks the veracity of the third
warrant, asserting that he was entitled to a Franks hearing based
on the warrant’s allegedly false statements and material omissions.
The district court found that (1) the erroneous date ascribed to
the first search and omitted information regarding the dismissal of
criminal charges arising from that search were innocent or
otherwise negligent mistakes; (2) counsel’s affidavit attesting to
Cameron’s recollection of the events was insufficient to rebut the
facts related in the warrant affidavit; and (3) the remaining facts
in the warrant affidavit, after excising the challenged portions,
were nevertheless sufficient to support the probable cause
determination. For these reasons, the district court denied
Patterson’s motion for a Franks hearing.
We review de novo the district court’s probable cause
determination under the Fourth Amendment. United States v.
7
Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996). Under Franks, a
defendant may challenge a facially valid affidavit supporting a
search warrant based on 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 . . . the allegedly false statement is necessary to
the finding of probable cause.” Franks, 438 U.S. at 155-56.
Because, however, there exists a “strong presumption of validity
with respect to the affidavit supporting the search warrant,” id.
at 171, the Franks rule has “limited scope,” id. at 167. Indeed,
the defendant bears a heavy burden in showing the entitlement to a
Franks hearing, because Franks requires the defendant to establish
a subjective component, that the affiant intended to deceive the
magistrate, and an objective component, that, without the falsified
information, the warrant lacked probable cause.1 Id. at 171-72;
1
In Franks, the Supreme Court specifically detailed the
evidentiary requirements necessary to obtain an evidentiary hearing
on a warrant affidavit’s integrity:
To mandate an evidentiary hearing, the challenger’s
attack must be more than conclusory and must be supported
by more than a mere desire to cross-examine. There must
be allegations of deliberate falsehood or of reckless
disregard for the truth, and those allegations must be
accompanied by an offer of proof. They should point out
specifically the portion of the warrant affidavit that is
claimed to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits of sworn or
otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.
Allegations of negligence or innocent mistake are
insufficient. The deliberate falsity or reckless
8
United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994) (“With
the defendant’s burden in attacking a search authorized by a
facially valid warrant so heavy, so too is his burden in
establishing the need for a hearing on the issue.”); United States
v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (the defendant must
satisfy both the subjective and objective components of the Franks
rule to be entitled to a hearing).
Based on these principles, we agree with the district court
that Patterson has failed to establish that Agent Fields
intentionally or recklessly proffered false or incomplete
information in his warrant affidavit. With respect to the
identified errors related to the first search, Patterson has, at
best, shown that Agent Fields committed innocent or negligent
errors in ascribing the wrong year to the first search and failing
to mention the dismissal of the criminal charges arising from that
search. Franks, 438 U.S. at 171 (“Allegations of negligence or
innocent mistake are insufficient.”). There simply is not enough
for us to infer bad motive from the fact of these errors alone.
disregard whose impeachment is permitted today is only
that of the affiant, not of any nongovernmental
informant. Finally, if these requirements are met, and
if, when material that is the subject of the alleged
falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to
support a finding of probable cause, no hearing is
required.
Franks, 438 U.S. at 171-72.
9
See Colkley, 899 F.2d at 301 (“Franks protects against omissions
that are designed to mislead, or that are made in reckless
disregard of whether they would mislead, the magistrate.” (emphasis
in original and internal citations omitted)); id. (finding that the
agent’s failure to include photospread information in the search
warrant application fell “far short of the level of flagrant police
action Franks is designed to prevent . . .”).
With respect to the alleged falsification of the agents’
conversation with Cameron, we conclude that Patterson has failed to
proffer competent evidence showing that the recorded statements
were even false. Franks makes clear that conclusory allegations of
unlawful official misconduct are insufficient; rather,
“[a]ffidavits of sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily
explained.” Id. at 171. Although counsel purported to supply the
evidentiary basis for this claim, counsel’s affidavit was without
personal knowledge of the events transpiring at the third search
and bereft of probative evidence other than hearsay statements.
Significantly, Patterson never gave any explanation to the
magistrate court or the district court as to why he could not
obtain an affidavit from Cameron on his motion for a Franks
hearing.2 Thus, in the absence of competent evidence in support of
2
Although Patterson eventually submitted individual affidavits
from Cameron and Thomas before the district court, he again offered
no explanation for why he could not have presented them earlier.
10
this claim, we cannot conclude that Patterson met his heavy burden
under Franks. Accordingly, we find that Patterson did not satisfy
Franks’s subjective requirement with regard to any of the
challenged portions of the warrant affidavit.
We further agree with the district court that, after setting
aside the alleged false statements and adding the disposition of
the criminal charges related to the first search, the warrant
affidavit still contained information that amply supported the
probable cause determination. See Franks, 438 U.S. at 171-72(“[I]f, when material that is the subject of the alleged falsity or
reckless disregard is set to one side, there remains sufficient
content in the warrant affidavit to support a finding of probable
For the first time on appeal, Patterson asserts that Cameron lived
over an hour from counsel’s office, to the extent that only a
telephone interview was feasible at the time the motion was filed.
Patterson still has not explained why he was unable to procure
Thomas’s affidavit.
We thus perceive no abuse of discretion in the district
court’s implicit decision to disregard the affidavits newly
submitted by Cameron and Thomas in adopting the M&R, particularly
since Patterson did not explain the absence of these affidavits to
the district court. See Doe v. Chao, 306 F.3d 170, 193 (4th Cir.
2002) (finding no abuse of discretion where the district court
refused to accept claimants’ supplemental affidavits on damages
issue after the magistrate judge’s recommendation, where the
claimants took the calculated risk of an evidentiary insufficiency
by refusing to submit damages evidence before the magistrate
judge); see also 28 U.S.C. § 636 (b)(1) (the district court “shall
make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection
is made,” but “may also receive further evidence” (emphasis
added)). The oversight is particularly disturbing because Franks
specifically put Patterson on notice of the heavy evidentiary
burden he faced in requesting the hearing. See infra, note 1.
11
cause, no hearing is required.”). Probable cause generally exists
“‘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.’” United States v. Hodge, 354
F.3d 305, 309 (4th Cir. 2004) (quoting Ornelas v. United States,
517 U.S. 690, 696 (1996)); Illinois v. Gates, 462 U.S. 213, 243
n.13 (1983) (probable cause “requires only a probability or
substantial chance of criminal activity, not an actual showing of
such activity.”). According to the warrant affidavit, the agents
detected a strong odor of marijuana emanating from Patterson’s
residence. Upon their arrival, Patterson peered through the storm
door, removed an unknown object from his jacket, and placed it in
the cabinet. After conducting separate field interviews with
Cameron and Thomas, who had voluntarily stepped outside Patterson’s
residence, the agents conducted a consensual search of Thomas’s
vehicle, which contained a small amount of marijuana. In light of
the fact that Patterson never submitted an affidavit challenging
these facts or his detention, we conclude that the above-recited
facts support the probable cause determination underlying the third
warrant.3
Accordingly, we conclude that Patterson has failed to
establish either the subjective or objective requirements of
3
In addition, we note that because the officers had probable
cause to search for marijuana in Patterson’s residence, the
firearms were subject to inevitable discovery.
12
Franks. For these reasons, we affirm the denial of Patterson’s
motion for a Franks hearing.
B.
Patterson next appeals the district court’s denial of his
motion to suppress evidence seized pursuant to the third warrant.
Specifically, Patterson asserts that the third warrant is invalid
because it referenced the second warrant, which, according to him,
was issued without probable cause. He therefore claims that any
evidence seized under the third warrant must be suppressed as fruit
of the poisonous tree. The district court denied the motion to
suppress after concluding that the second warrant was issued with
probable cause and that, therefore, the second warrant did not
taint the third warrant.
In examining the district court’s denial of Patterson’s motion
to suppress, we “review [] questions of law de novo and findings of
[historical] fact and reasonable inferences drawn from those
findings for clear error.” United States v. Holmes, 376 F.3d 270,
273 (4th Cir. 2004) (alterations in original and internal quotation
marks and citations omitted); United States v. Perkins, 363 F.3d
317, 320 (4th Cir. 2004). Because the district court denied the
motion, we construe the evidence in the light most favorable to the
Government. Perkins, 363 F.3d at 320.
13
Although we conclude that the denial of the motion to suppress
was appropriate, we need not reach the validity of the second
warrant.4 It is generally accepted that “the inclusion of certain
illegally obtained information in the application for a search
warrant does not require suppression of the evidence seized under
the warrant (‘fruit of the poisonous tree’) if, excluding the
illegally obtained information, probable cause for the issuance of
the warrant could still be found.” United States v. Apple, 915
F.2d 899, 910 (4th Cir. 1990); United States v. Whitehorn, 813 F.2d
646, 649 (4th Cir. 1987) (search warrant’s references to unlawful
bomb sweep and Uzi submachine gun discovered during a previous
search did not render the warrant invalid where it was otherwise
supported by probable cause). As discussed above, the warrant
affidavit supporting the third warrant attested that the agents
detected a strong odor of marijuana coming from inside Patterson’s
residence, Patterson placed an unknown object in the cabinet upon
their arrival, and a consensual search of Thomas’s vehicle revealed
a small amount of marijuana. Thus, even after excising the
references to the second warrant, we nevertheless find probable
cause in the remaining facts contained in the third warrant.
4
Indeed, although certain portions of the warrant affidavit
supporting the second warrant could have been ripe for cross-
examination, Patterson did not submit an affidavit contesting those
facts.
14
Accordingly, we affirm the denial of Patterson’s motion to suppress
the evidence seized pursuant to the third warrant.
III.
The district court’s denial of Patterson’s motion for a Franks
hearing and motion to suppress the contents of the third search is
therefore affirmed.
AFFIRMED
15