United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
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.
Overview of the Investigation
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.
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.
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. 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.
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.
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
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.
Standard of Review
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
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).
Fourth Amendment Principles
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).
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
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).
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
(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
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.
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).
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).
Ping Warrant for the Samsung Galaxy Phone
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,
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.
affidavit described the incident on June 6-7, 2013 as
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
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. ...