Neustadter v. Commonwealth , 12 Va. App. 273 ( 1991 )

Opinion

WILLIS, J.

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court of the United States held:

Where 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 alleged false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 155-56.

The appellant, Allan Neustadter, was convicted of possession of cocaine with intent to distribute it after entering a conditional plea of guilty. The cocaine was discovered upon the execution of a search warrant for his home. He contends that he made the substantial preliminary showing required by Franks, and that the trial court erred in denying his motion for an evidentiary hearing. However, relying on United States v. Paradis, 802 F.2d 553 (1st Cir. 1986), the trial court denied the motion, holding that “[e]ven were the Court to assume, without deciding, that the affidavit knowingly, intentionally or in reckless disregard of the truth, omitted certain facts from the affidavit, those omissions were not necessary to sustain a finding of probable cause.” We agree and affirm.

Based on information provided in an affidavit by Investigator Poppa of the Loudoun County Sheriffs Department, a search warrant was issued for Neustadter’s home. The subsequent search produced over 100 grams of cocaine, a cutting agent, a sifting device, and a set of triple beam scales. In his affidavit, after describing his experience with narcotics, Investigator Poppa swore to the following:

During September of 1983, Sgt. Rick diDerega, then assigned to the Narcotics Unit of the Loudoun County Sheriffs Department, received information from a confidential informant that Allan L. Neustadter, who resides at the “Old Train Station” on Route 719, in the Town of Round Hill, Virginia, which is in Loudoun County, was distributing large quantities of cocaine. The informant stated that Allan L. Neustadter was the main supplier for Dale Davis, who was arrested by narcotics officers from the Loudoun County Sheriffs Department in July, 1982 for Distribution of Cocaine.

During the first week of January 1984, your affiant investigator, Douglas A. Poppa of the Loudoun County Sheriffs Department, interviewed a confidential informant herein after referred to as “C.I.-1”, who stated that it was present numerous times during 1982 - 1983 at the residence of Allan L. Neustadter, who lives at the Old Train Station in Round Hill, Virginia, and that it observed Allan L. Neustadter distributing cocaine and marijuana to numerous individuals on a regular basis from his residence.

C.I.-l stated to your affiant that it had observed Neustadter removing cocaine that was in rock form from paper bags and placing the rock cocaine in a machine that would grind the rocks into powder. Neustadter would then take the powdered cocaine and place it in numerous 35mm film canisters to be sold.

C.I.-l stated to your affiant that it also had observed Neustadter in possession of large quantities of marijuana that Neustadter kept in large bags. C.I.-l has observed Neustadter sell the marijuana from his residence sometimes in half pound quantities.

C.I.-l stated to your affiant that during 1982 and 1983 when it was present at Neustadter’s residence in Round Hill, it had observed Neustadter receiving cash for the sale of marijuana and cocaine. C.I. stated that Neustadter would sell a gram of cocaine for $100.00 and a “lid” of marijuana for $50.00. C.I.-l stated that Neustadter would also sell the cocaine in quarter ounce quantity but, the C.I. did not know the price.

During September of 1986, Sgt. Jeff Brown, of the Loudoun County Sheriffs Department, spoke to a confidential informant, herein after referred to as “C.I.-2”. C.I.-2 stated to Sgt. Brown that it has obtained cocaine from Bobby Lee Rawlings over the past eighteen months, who resides in Clarke County, Virginia, and that C.I.-2 was told by Rawlings’ wife, Lori, that Bobby Lee’s “connection” is a subject named “Allan”, who resides at the “Old Train Station” in Round Hill, Virginia.

On December 15, 1986, your affiant, along with Sgt. Jeff Brown, spoke with Bobby Rawlings in Loudoun County, Virginia. Rawlings stated that he has purchased one half ounce quantity of cocaine at a time from Allan Neustadter at his residence at the Old Train Station in Round Hill, Virginia during 1985 and 1986 for $1,050.00 per one half ounce. Rawlings stated that this occurred, at least, twenty-four times. Rawlings stated he usually called up Neustadter on the phone and asked him if he could come over and if Neustadter replied “yes” that meant that the cocaine would be there. Rawlings stated that on Thursday, December 11, 1986, in the afternoon, he purchased one half ounce of cocaine from Neustadter at his residence and paid Neustadter $1,050.00 for it.

Your affiant believes that based on the statement that Bobby Lee Rawlings made to your affiant and Sgt. Jeff Brown on December 15, 1986, that it verifies what your affiant was told by C.I.-l during 1984 and what Sgt. Brown was told by C.I.-2 during September 1986. Your affiant was told by C.I.-l that it will testify in court if needed against Allan L. Neustadter. Both C.I.-l and C.I.-2 have made statements against penal interests.

In addition, Investigator Poppa also noted that he received a copy of the deed to the Old Train Station property, which showed that Neustadter purchased it in May 1980. The Department of Motor Vehicles’ records reflect that Neustadter’s address is the same as the Old Train Station’s address.

In support of his motion for a Franks hearing, Neustadter filed an affidavit by Dale Davis. Davis swore that subsequent to his 1982 arrest he was questioned by the police concerning his cocaine dealings. He swore that, if he had been asked, he would have told the police that Neustadter was not his source for cocaine because he had never met him or purchased cocaine from him. Neustadter filed affidavits that Poppa’s informants, identified as C.I.-l and C.I.-2, had not made statements against their penal interests because they had been promised immunity from prosecution and that Poppa knew this. He submitted an affidavit that Poppa had omitted from the search warrant affidavit information known to him to the effect that Bobby Rawlings had initially denied any drug involvement with Neustadter and had named Neustadter as his drug source only upon being promised that he would not be prosecuted if he talked, but that if he failed to talk, he (Rawlings) and his wife would be jailed and would be away from their small daughter for Christmas. The affidavit alleged that Rawlings had failed to surrender a cache of drugs to Poppa.

Neustadter contends that upon excising the “proffered false and misleading statements” and inserting the “material omission” into the search warrant affidavit, there does not remain sufficient probable cause to issue the search warrant. He argues that he was, therefore, entitled to a Franks hearing. He characterizes the remaining evidence in the affidavit as follows:

[sjtale information from individuals of unknown reliability (CI-1 and CI-2); stale hearsay information from an individual (the first confidential informant) of unknown reliability that is directly contradicted by a person with first hand knowledge (Davis); and coerced information from an individual (Rawlings) of unknown reliability who persistently provided exculpatory information until he was told that if he did not incriminate Neustadter, he and his wife were going to jail, and his young daughter would become the ward of the welfare department.

We disagree with Neustadter’s characterization and conclusion. Instead, we find that what remains is the account of Rawlings that he purchased cocaine from Neustadter. Rawlings gave this account reluctantly and under pressure but never repudiated it. Although the two confidential informants were shown to have nothing to lose and, therefore, no enhanced credibility, their reports were mutually corroborative and corroborated Rawlings’ information. The portion of the affidavit that dealt with Dale Davis was inconsequential. The time lapse and unsubstantiation of the informant gave that report little strength. It served only to corroborate what Rawlings told Poppa and Brown. Furthermore, Poppa said that he garnered the information about Davis from an old police report and there is no suggestion that this was not true. Davis’ denial did not refute the fact that the report had in truth been made to diDerega.

If we accept all of the appellant’s allegations and set aside all that he alleges to be false or in reckless disregard of the truth, “there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Franks, 438 U.S. at 171-72. Therefore, no evidentiary hearing was required. The judgment of the trial court is affirmed.

Affirmed.

Keenan, J., concurred.