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United States v. Christian

United States District Court, E.D. Virginia, Alexandria Division

May 24, 2017



          Leonie M. Brinkema United States District Judge

         In his Motion to Suppress Evidence and for a Franks Hearing ("Motion to Suppress") [Dkt. No. 73], defendant, who is awaiting retrial for conspiracy to distribute drugs, has moved to suppress evidence obtained under two search warrants, one for location-information seized from his Samsung Galaxy phone and the other for the search of an apartment in Greensboro, North Carolina. Defendant maintains that the affidavits in support of both warrants failed to establish probable cause and intentionally or recklessly contained false statements and omitted facts that were material to the determination of probable cause, entitling him to a Franks hearing. For the reasons stated in open court and in this Memorandum Opinion, which expands on those reasons, the motion has been denied.[1]

         I. BACKGROUND

         A. Overview of the Investigation

         In 2012, the Federal Bureau of Investigation ("FBI"), in a joint investigation with several other law enforcement agencies, began investigating a narcotics trafficking organization operating in Prince William County, Virginia. [Dkt. No. 2] ¶ 10. Based on evidence gathered by the Prince William County Police Department ("PWCPD"), the investigation began by focusing on Tony Bowles ("Bowles"), who was "reported by multiple sources to be a substantial cocaine and crack dealer" in Northern Virginia. Id. The investigation revealed that Bowles had a large network of people through whom he distributed cocaine and crack. Id. ¶ 11. Bowles' primary source of supply was Johnnie Hill ("Hill"), who lived in Virginia. Id. ¶ 12. The investigation expanded into North Carolina when it was determined that Marciano Reza ("Reza"), a resident of North Carolina, was one of Hill's cocaine sources. Id. ¶ 13. The investigation of Reza led to defendant Brennan Christian ("Christian" or "defendant"), also a resident of North Carolina. As will be explained, Christian is also known as "Twin" and "Trey." [Dkt. No. 61] at 1.

         During the course of the investigation, agents obtained court authorization pursuant to Title III to intercept the wire and electronic communications of eleven cell phones. Gov. Opp. at 2. The wiretap of Reza's phone (910-975-7648) revealed multiple drug related calls involving 786-459-1960 and on July 26, 2013 an order authorizing the interpretation of communications to and from that phone was obtained for a 30-day period (the tenth target phone or "TT #10"). Def. Ex. 1. According to the affidavit supporting that order, TT #10 was "believed to be used by an [as then] unidentified male who [was] known as 'Trey' and 'Twin.'" Id. ¶ 3. On August 27, 2013, law enforcement also sought and obtained an order authorizing the installation and use of a pen register and a trap and trace device, and the disclosure of stored wire and electronic transactional records for TT #10 for a period of 60 days. Def. Ex. 2.

         B. The Warrants

         The first search warrant at issue in defendant's Motion to Suppress includes authorization for the disclosure of location based services and disclosure of stored telecommunications records for 30 days for a different telephone number, 336-254-9858 ("the Samsung Galaxy"), which agents identified as a telephone number Christian used to communicate with his probation officer. Def. Ex. 3.[2] The warrant, which was issued on October 9, 2013, required the service provider to create and disclose records using so-called "Enhanced 911" tools, such as GPS fixes, triangulation and cell-site "pings." Id. ¶ 3; Pafford Aff., Def. Ex. 4 ¶ 65. For this reason, this warrant will herein be referred to as the Ping Warrant.

         Under this kind of order, the provider will send a query to the subject phone. If the phone is powered on, the provider will be able to transmit the location information to the investigative agency either orally or in writing. Id. According to the supporting affidavit by FBI Special Federal Officer Joshua Pafford ("Pafford Affidavit"), one of the purposes of obtaining location data was to "assist law enforcement in... identifying the locations where [the suspects were] conducting drug trafficking-related activity." Id. ¶ 60.

         On October 15, 2013, approximately one week after the Ping Warrant was authorized, seventeen defendants, including Bowles and Hill, were charged in a criminal complaint in this district court with conspiracy to distribute 500 grams or more of cocaine and 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). See Case No. 1:13-mj-611. In a separate complaint, five other defendants, including Reza and Christian, were charged with conspiracy to distribute five kilograms or more of cocaine. See Case No. 1:13-mj-612. Arrest warrants were executed in a coordinated and simultaneous fashion on October 17, 2013. Gov. Opp. at 20. All of the charged persons except Christian were arrested. Id. at 2. Officers attempted to arrest Christian at 1101 Anderson Place in High Point North Carolina, the address he had on record with his probation officer, but were unsuccessful, Id. at 21, and Christian remained at large until May 2016, Id. at 2.[3]

         On October 18, 2013, one day after the initial arrests were made, agents obtained a warrant for another location where they believe Christian stayed, 7027 West Friendly Avenue, Apartment B, Greensboro, North Carolina ("the Apartment B warrant"). Def. Ex. 24. The supporting affidavit by FBI Special Agent Norman Kuylen ("Kuylen Affidavit") represented that "[l]aw enforcement ha[d] determined that [Christian] reside[d]" at that address based on location data obtained from the Ping Warrant, as well as from physical surveillance, statements from the apartment manager, and statements from the resident of a nearby unit, which agents believed established probable cause that the defendant resided in Apartment B. Kuylen Aff., Def. Ex. 25. ¶¶ 10-12, 14. The affidavit also represented that "there [was] probable cause to believe that the individual exercising control over the target location is actively involved in a conspiracy to distribute cocaine and that he has discussed explicitly, or other evidence has established, that within his residence he maintains items related to his involvement in the conspiracy." Id. ¶ 15. Although agents did not find Christian in Apartment B, they recovered several phones, including TT # 10, which is among the objects defendant wants to suppress. Gov. Opp. at 2.


         A. Standard of Review

         The moving party has the burden to prove that suppression is proper. United States v. Simmons. 107 F.Supp.2d 703, 705 (E.D. Va. 2000). "Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove the admissibility of the challenged evidence by a preponderance of the evidence." United States v. Gualtero. 62 F.Supp.3d 479s 482 (E.D. Va. 2014). The moving party's burden is proof by a preponderance of the evidence. United States v. Matlock. 415 U.S. 164, 178 n.14 (1974). "In the course of deciding a motion to suppress, the district court may make findings of fact, as well as rulings of law." United States v. Stevenson. 396 F.3d 538, 541 (4th Cir. 2005).

         A court reviewing a magistrate judge's decision to authorize a search warrant is to "accord great deference to the magistrate's assessment of the facts presented to him, " United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990), and looks to whether there was a "substantial basis for... concluding]" that probable cause existed, Jones v. United States. 362 U.S. 257, 271 (1960). In addition, "The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate, " not on after-acquired evidence. Maryland v. Garrison. 480 U.S. 79, 86 (1987).

         B. Analysis

         1. Fourth Amendment Principles

         "The Fourth Amendment requires that warrants (1) be issued by a neutral and detached magistrate, (2) be based upon probable cause supported by oath, and (3) contain a particular description of the place to be searched and things to be seized." United States v. Clutchette, 24 F.3d 577, 579 (4th Cir. 1994). Probable cause to search is "a fair probability that contraband or evidence of a crime will be found." Illinois v. Gates. 462 U.S. 213, 238 (1983). It is "a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules, " Id. at 232, and thus requires a "totality-of-the-circumstances analysis, " Id. at 238. A magistrate judge reviewing a warrant application for probable cause makes "a practical, common-sense decision..., given all the circumstances set forth in the affidavit before him." Id. An affidavit submitted in support of a search warrant application is presumed valid. Franks v. Delaware, 438 U.S. 154, 171 (1978).

         "The particularity requirement is fulfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description of the items leaves nothing to the discretion of the officer executing the warrant." United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010). The Framers included the particularity requirement to end the practice of issuing general warrants, which is to say "a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). Nevertheless, a warrant does not impose a "constitutional strait jacket" on law enforcement officers. United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988) (internal quotation marks omitted). In this vein, "[c]ourts must refrain from interpreting warrant terms in a 'hypertechnical' manner, and should instead employ a 'commonsense and realistic' approach." United States v. Dargan, 738 F.3d 643, 647 (4th Cir. 2013) (citing Williams, 592 F.3d at 519).

         In the Fourth Circuit, a warrant generally satisfies the particularity requirement when it allows officers "to seize only evidence of a particular crime." United States v. Fawole, 785 F.2d 1141, 1144 (4th Cir. 1986). For example, in United States v. Ladd. 704 F.2d 134 (4th Cir. 1983), the Fourth Circuit upheld a search warrant giving officers the discretion to seize all property relating to "the smuggling, packing, distribution and use of controlled substances, " as satisfying the particularity requirement. The Ladd court held that "[m]ore specificity is not required by the Constitution." Id. at 136. Similarly, in United States v. Anthony. 4 F.3d 986 (4th Cir. 1993), the Fourth Circuit upheld a warrant that authorized the agents' search of evidence relating to the crime of bank robbery, finding that although the warrant was "certainly broad in its description" it did not fail to "provide that degree of specificity required by the precedent of this court." Id. These cases illustrate the principle that, although a warrant authorizing a search for evidence relating to "general criminal activity" such as "fraud" or "conspiracy" is "overbroad because it 'provides no readily ascertainable guidelines for the executing officers as to what items to seize, '" "a warrant authorizing a search for evidence relating to 'a specific illegal activity, ' such as 'narcotics, ' or 'theft of fur coats' is sufficiently particular." United States v. Dickerson. 166 F.3d 667, 694 (4th Cir. 1999) (citing United States v. George. 975 F.2d 72, 76 (2d Cir. 1992)), rev'd on other grounds. 530 U.S. 428 (2000).

         Generally, evidence seized during an unlawful search, such as when a warrant lacks probable cause or fails to identify the particular items to be seized, will be suppressed, as will "fruit of the poisonous tree, " Wong Sun v. United States. 371 U.S. 471, 484-85 (1963); however, under the "good faith exception" established in United States v. Leon, the exclusionary rule does not apply to evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. 468 U.S. 897, 920 (1984). This is proper because, in these circumstances, suppression would not deter unlawful police conduct. Id. As the Fourth Circuit has explained, the Leon court identified four situations in which it would not be reasonable for an officer to rely on an invalid search warrant:

(1) the magistrate was misled by information in an affidavit that the officer knew was false or would have known was false except for the officer's reckless disregard of the truth;
(2) the magistrate wholly abandoned his detached and neutral judicial role;
(3) the warrant was based on an affidavit that was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and
(4) the warrant was so facially deficient, by failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid.

United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995).

         A criminal defendant seeking to avail himself of the exclusionary rule "is generally not entitled to challenge the veracity of a facially valid search warrant affidavit." United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). The narrow exception to this rule, articulated in Franks, provides that a defendant who 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" is entitled to an evidentiary hearing concerning the veracity of statements in the affidavit. 438 U.S. at 155-56. This is sometimes called Franks* intentionality prong. In addition, Franks includes a materiality prong which requires that a defendant must also show that the false information is "necessary" to the probable cause determination. Id. at 171-72. As the Supreme Court emphasized, "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." Id. at 171.

         The two-pronged Franks test also applies to cases "when an agent omits relevant facts from the affidavit." United States v. Lull. 824 F.3d 109, 114 (4th Cir. 2016) (emphasis in original). In the context of an omission, the defendant must show that the "affiants omit[ted] material facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading." United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (citation and internal quotation marks omitted). "A showing that the officer acted negligently, or that the omission was merely an innocent mistake, is insufficient to warrant suppression." Lull, 824 F.3d at 115. Thus, "the defendant's burden in showing intent is greater in the case of an omission because '[a]n affiant cannot be expected to include in an affidavit every piece of information gathered in the course of an investigation." Id. (quoting Coltey, 899 F.2d at 300). "One way of establishing reckless disregard is by proffering 'evidence that a police officer failed to inform the judicial officer of facts [he] knew would negate probable cause." Id. at 117 (citing Miller v. Prince George's County. 475 F.3d 621, 627 (4th Cir. 2007)). "[T]he significance-or insignificance-of a particular omission to the determination of probable cause may inform [the court's] conclusion regarding the agent's intent." Id. The materiality standard for omissions mirrors that for misinformation: the defendant must show that the omission is "necessary to the [neutral and disinterested magistrate's] finding of probable cause." United States v. Wharton. 840 F.3d 163, 168 (4th Cir. 2016) (citing Franks. 438 U.S. at 156) (alteration in original). Even if information is relevant, it is not material unless 'its inclusion in the affidavit would defeat probable cause.'" Id. at 168-69 (citing Colkley, 899 F.2d at 301).

         Under both Franks and Lull, to assess materiality a court must correct the affidavit by either excising the misrepresentation or "insert[ing] the facts recklessly [or intentionally] omitted, " and then "determine whether or not the corrected warrant affidavit would establish probable cause." Lull, 824 F.3d at 169 (citing Miller. 475 F.3d at 628).

         2. Ping Warrant for the Samsung Galaxy Phone

         Defendant argues that the affidavit in support of the Ping Warrant lacked probable cause because it contained the materially false statement that the affiant believed defendant had stopped using TT #10 to communicate with co-conspirators and was using the Samsung Galaxy for such communication. Def. Mem. at 11-12. In addition, he claims he is entitled to a Franks hearing because the affidavit contained "intentionally or recklessly false or misleading representations" and "omitted information material to the finding of probable cause with the intent to mislead the magistrate, or with reckless disregard of whether it would make the affidavit misleading." Def. Mem. at 7, 13.

         a. The Affidavit

         Investigators applied for the Ping Warrant on October 8, 2013. Pafford Aff. at 1. The affidavit in support of the application was prepared by Joshua Pafford who stated that he had been a law enforcement officer with the PWCPD since 2005 and was then acting as a Special Federal Officer of the FBI. Id. Drawing on wiretap records and other evidence, the Pafford Affidavit described in detail a series of conversations, one set ranging from June 6-7, 2013, and the other from June 28-29, 2013, "that capture clearly the relationship between" Reza, Christian, and the other co-conspirators. Id. ¶ 50.

         The affidavit described the incident on June 6-7, 2013 as follows:

On June 6, 2013, at 3:45 p.m., TREJO called MARCIANO [Le,, Reza] and brokered a deal with him for ten kilograms of cocaine at a price between $35, 000 and $36, 000 per kilogram.
CHRISTIAN called MARCIANO at 6:20 p.m. from a new telephone number and told MARCIANO, "What's up brother, this is my new number and shit." MARCIANO then told him about the deal he brokered with TREJO. "He was gonna let me get it for thirty-six-----But he's still gonna front 'em to me. I'm just waiting on him to call me-----Yeah, so I might just put like five on you, something like that. He give me, he give me, he give me a week on it." CHRISTIAN replied, "Okay, alright. I gotcha." I believe MARCIANO was explaining that he would get the kilograms at $36, 000 a piece but that all or a portion of the cocaine would be fronted and he would have a week to pay off the entire cost of the deal. I further believe he was going to give Christian five of the kilograms.
At 6:51 p.m., MARCIANO spoke again with TREJO and asked if the deal would take place that day or the next. TREJO said he was told the person with the cocaine would be ready that day to do the deal.
At 8:06 p.m. MARCIANO called TREJO and told him that the deal would have to wait until the next day.
At 9:10 p.m., MARCIANO told CHRISTIAN, "I was suppose [sic] to see them in the a.m., early in the morning." He added, "Hell, yeah. So soon as I get them in my hands, I'll call ya." At 9:16 p.m., MARCIANO told TREJO that he had only been able to gather up "eighty-nine bucks, " which I believe meant $89, 000. TREJO said the person with the cocaine was expecting "one hundred bucks, " which I believe meant $100, 000. ...

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