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United States v. Anderson

United States District Court, W.D. Virginia, Roanoke Division

July 23, 2019



          Elizabeth K. Dillon, United States District Judge.

         Pending before the court is defendant Harold Emanuel Anderson's motion to suppress and request for a Franks hearing (Dkt. No. 31), which has been briefed and argued. Anderson argues that the court should suppress all evidence seized during a search of his home, pursuant to a search warrant issued on February 1, 2019, and executed on February 2, 2019. He alleges that the “warrant was based on an affidavit that was: a. defective on its face; and b. obtained pursuant to a Roanoke City policy and practice calculated to frustrate meaningful judicial review of police conduct and thereby obstruct justice.” (Id. at 1.) He also argues that the affidavit was tainted with material omission of important facts, justifying an evidentiary Franks hearing. (Id. at 16.) For the reasons set forth below, the court will grant Anderson's motion with regard to his request for a Franks[1] hearing and take the remainder of the motion under advisement.

         I. BACKGROUND

         Anderson is charged in a two-count indictment with knowingly possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and with possessing with intent to distribute fifty grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). (Dkt. No. 12.)

         According to the affidavit for the search warrant application, Detective Bridges, the affiant, believed Anderson to be in possession of heroin. The affidavit included an address for what was believed to be Anderson's residence and a description of the residence as a “single family dwelling made up of red and white wood siding, ” with “a set of red steps in the front of the residence that lead up to the front door, ” and “[t]he number 2126 . . . clearly posted on the front of the residence.” (Dkt. No. 31-1 at 4.)

         In the space provided in the affidavit for “material facts constituting probable cause that the search should be made, ” Detective Bridges wrote “See Attachment A, ” referencing an attached single page. The attachment to the affidavit stated that for two months, “your affiant . . . conducted a narcotics investigation” of Anderson, during which “your affiant . . . conducted multiple controlled purchases” from him. It further stated that in the 72 hours leading up to the search warrant application, Detective Bridges used a confidential informant (CI) to purchase heroin from Anderson's residence. Before the transaction, Detective Bridges searched the CI and did not find illegal narcotics or currency, and he provided the CI with currency from the Roanoke City Police Department. Detective Bridges observed the CI both walking in and exiting the front door of Anderson's residence. After the CI exited the residence, he provided Detective Bridges with a brown substance that field-tested positive for heroin. The CI told Detective Bridges that when he was inside the residence, a person who he knows as Harold Anderson sold him heroin. He also told Detective Bridges that Anderson always has heroin and other illegal narcotics and that he believed there were narcotics, as well as evidence of distribution, inside the residence. The CI himself is a narcotic user who is familiar with the appearance and packaging of heroin. (Id. at 6.)

         Where the search warrant application asks about the informer's credibility or the reliability of the provided information, Detective Bridges provided that he has been employed with the Roanoke Police Department since 2011, spent approximately three years on patrol, attended multiple drug narcotic related courses, and presently serves as a member of the High Intensity Drug Trafficking Area regional drug task force unit. He made no statements concerning the CI's credibility. (Dkt. No. 31-1 at 5.)

         A search warrant was issued by a magistrate at 1:12 p.m. on February 1, 2019, and executed the following day. (Dkt. No. 31-1 at 1-2.)

         Anderson moves to suppress all evidence seized during the search of his home. He bases his motion on several alleged misrepresentations and/or omissions in the affidavit. First, the affidavit did not address the credibility or reliability of the informant who allegedly purchased heroin from Anderson during the controlled buy that was the basis for the search warrant application. Second, there is no documentation from the controlled purchase detailed in the affidavit, and the heroin that was allegedly obtained from the home was destroyed without any tracking information or report. Third, the informant involved in the “multiple controlled purchases” from Anderson in the past was not the same informant in the most recent controlled purchase that was detailed in the affidavit. Fourth, the first informant from the earlier controlled purchases was caught with suboxone, a narcotic, while conducting one of the controlled purchases from Anderson.

         Accordingly, Anderson argues the search warrant is facially defective or, in the alternative, that the search warrant was supported by a tainted affidavit that omitted material facts, justifying a Franks hearing. At the hearing on the motion, the court determined that the affidavit for the search warrant is facially valid. The issue left before the court is whether the alleged omissions from the affidavit mandate a Franks hearing.


         For the reasons set forth below, the court will grant Anderson's request for a Franks hearing.

         A. Preliminary Showing Required for a Franks Hearing

         A search warrant affidavit has a “strong ‘presumption of validity.'” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)). However, under the requisite two-pronged test, if a defendant can, first, make “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, second, show that the false information was “essential to the probable cause determination, ” then he may “obtain an evidentiary hearing on the affidavit's integrity” (a Franks hearing). Colkley, 899 F.2d at 300. These showings are referred to as the “intentionality” and “materiality” prongs. United States v. Lull, 824 F.3d 109, 114 (4th Cir. 2016). The items found during the search will be excluded ...

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