Virginia Lawyers Weekly VA Lawyers Weekly
Although one detective’s affidavit said a post-shooting blood trail into an appliance store led to a gun in plain view on a filing cabinet, and a second detective’s similar affidavit said the gun was inside a drawer of the filing cabinet, the district court did not err in declining to hold a Franks hearing to challenge the veracity of a search warrant affidavit, and the 4th Circuit upholds conviction on a conditional guilty plea to possession of ammunition as a convicted felon.
Defendant Terrell Allen appeals from his conviction 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 under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), holding that, in limited circumstances, an accused is entitled to evidentiary hearing on veracity of search warrant affidavit.
Allen entered a conditional guilty plea to a single § 922(g)(1) offense, reserving his right to appeal the court’s adverse suppression rulings. We affirm.
Allen maintained 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 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.
It is apparent 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.
The district court also did not err in declining to suppress the evidence seized during execution of the first warrant, or in denying defendant’s motion to suppress the ammunition underlying his conviction on the ammunition offense.
Judgment affirmed.
U.S. v. Allen (King, J.) No. 10-4012, Jan. 21, 2011; USDC at Baltimore, Md. (Motz) Gerald C. Ruter for appellant; Philip S. Jackson, AUSA, for appellee. VLW 011-2-012, 16 pp.
