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United States v. Anderson

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

January 16, 2020

UNITED STATES OF AMERICA
v.
HAROLD EMANUEL ANDERSON

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         Pending before the court is defendant Harold Emanuel Anderson's motion to suppress. (Mot. to Suppress, Dkt. No. 31.) 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.) By order entered July 23, 2019, the court granted Anderson's motion with regard to his request for a Franks[1] hearing and took the remainder of the motion under advisement.

         The parties presented evidence at the Franks hearing and have filed supplemental memoranda in support of their positions. For the reasons stated below, the court will grant Anderson's motion to suppress.

         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. (Id. at 5.) The attachment to the affidavit stated that for two months, “your affiant has conducted a narcotics investigation” of Anderson, during which “your affiant has conducted multiple controlled purchases” from him. (Id. at 6.) 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.[2] 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 (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 had 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.)

         Where the search warrant application asks about the informer's credibility or the reliability of the provided information, Detective Bridges stated that he has been employed with the Department since 2011, spent approximately three years on patrol, attended multiple drug 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. (Id. at 5.)

         A search warrant was issued by a magistrate at 1:12 p.m. on February 1, 2019, and executed the following day. (Id. 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. The court will focus on three of his arguments here. First, there is no indication in the affidavit that Detective Bridges used two different CIs-one for the controlled buys and a different one for the later PC buy. Second, the affidavit did not address the credibility or reliability of either informant who allegedly purchased heroin from Anderson as part of the controlled buys, despite Detective Bridges' knowledge of facts negatively affecting both informants' credibility or reliability. Third, the affidavit misleadingly provides information weighing on Detective Bridges' credibility and suggests that Detective Bridges “conducted” the controlled buys from Anderson.[3]

         At the first hearing on Anderson's motion, the court determined that the affidavit for the search warrant is facially valid.[4] Nonetheless, the court further determined that Anderson made a substantial preliminary showing sufficient to obtain a Franks hearing on the affidavit's integrity. Specifically, the court held that Anderson made a substantial preliminary showing that Detective Bridges omitted material information from his affidavit for the search warrant with reckless disregard for whether it would make the affidavit misleading.

         Having considered the evidence presented at the Franks hearing and the supplemental briefs filed by the parties, the court must now determine whether Anderson met his burden of establishing by a preponderance of the evidence that Detective Bridges recklessly or intentionally omitted facts from his affidavit that were essential to the probable cause determination.

         II. DISCUSSION

         A. Standard for Suppression of Evidence Pursuant to Franks

         Franks v. Delaware allows a defendant to challenge the veracity of a sworn statement used by law enforcement to obtain a search warrant. 438 U.S. 154 (1978). “[W]here 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 allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.” Id. at 155-56. This test “applies not only to cases in which an agent includes affirmatively false statements in a warrant affidavit, but also when an agent omits relevant facts from the affidavit.” United States v. Lull, 824 F.3d 109, 117 (4th Cir. 2016) (citing United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)). Courts refer to the subsequent evidentiary hearing as a “Franks” hearing. Id. at 114.

         If at the hearing the defendant establishes by a preponderance of the evidence that the affiant omitted material facts “with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading” and that the omission is “indeed material, ” the court must grant the defendant's motion to suppress. Id. at 115.

         B. Anderson Has Met His Burden Under Franks

         As a preliminary note, this case is similar to United States v. Lull, in which the Fourth Circuit vacated a defendant's conviction and sentence based on similar factual omissions from a search warrant application. 824 F.3d at 111. Although distinguishable in minor respects, the evidence presented at the Franks hearing on Anderson's motion to suppress suggests a similar result is appropriate here. Based on that evidence, and for the reasons set forth in more detail below, Anderson has established by a preponderance of the evidence that Detective Bridges omitted information essential to the magistrate's probable cause determination in reckless disregard of whether the omission would mislead the magistrate.

         1. Reckless Disregard

         To meet his burden under the first prong of the Franks analysis, Anderson must show that Detective Bridges “omitted information with the intent to mislead the magistrate or that he omitted the information with reckless disregard of whether it would make the affidavit misleading.” Id. at 115. It is insufficient to show that the affiant acted negligently or committed an “innocent mistake.” Id. (quoting Miller v. Prince George's Cty., 475 F.3d 621, 627-28 (4th Cir. 2007)). It is likewise insufficient to show merely that the affiant knowingly omitted the information. United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990) (“[A]n affiant cannot be expected to include in an affidavit every piece of information gathered in the course of an investigation.”). Rather, Anderson must show that the omissions were “designed to mislead, or [were] made in reckless disregard of whether they would mislead, the magistrate.” Id. at 301. Recklessness in this context can be established by showing the officer acted “‘with a high degree of awareness of [a statement's] probable falsity,' that is, ‘when viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.'” Miller v. Prince George's Cty., 475 F.3d 621, 627 (4th Cir. 2007) (alteration in original) (quoting Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)).

         “With respect to omissions, ‘reckless disregard' can be established by evidence that a police officer ‘failed to inform the judicial officer of facts [he] knew would negate probable cause.'” Id. (alteration in original) (quoting Beauchamp v. City of Noblesville, Inc., 320 F.3d 733, 743 (7th Cir. 2003)); see also United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) (“[R]ecklessness may be inferred from the fact of omission of information from an affidavit. Such an inference, however, is warranted only when the material omitted would have been ‘clearly critical' to the finding of probable cause . . . .” (citations omitted)). In Lull, the Fourth Circuit found that omission of information weighing on an informant's reliability was “clearly relevant” to a probable cause determination-even more so where the affidavit “contained no other statement concerning the informant's credibility or experience working as a confidential informant.” 824 F.3d at 117; see also United States v. Simmons, 771 F.Supp.2d 908, 918 (N.D. Ill. 2011) (“Importantly, the lack of other indicia of reliability in this case makes these facts particularly ‘critical' to the probable cause determination.”).

         Because Detective Bridges had obvious reason to question the accuracy of his affidavit, and the omitted material is “clearly critical” to the finding of probable cause, the court finds that Detective Bridges omitted facts from his affidavit with reckless disregard of whether his omission would make his affidavit misleading.[5]

         a. Failure to distinguish between CIs

         In Attachment A to the affidavit, Detective Bridges first states that “your affiant” has “conducted” an investigation through which “your affiant has conducted multiple controlled purchases from Harold Anderson.” (Dkt. No. 31-1 at 6.) Presumably, the affidavit refers to the two controlled buys conducted December 7, 2018, and December 11, 2018, by the first informant to aid the investigation (CI-1). (Hr'g. Tr. 31, 44, Dkt. No. 54.) Detective Bridges then proceeds to outline the PC buy that was conducted by a second informant (CI-2). (Dkt. No. 31-1 at 6.) However, the affidavit does not state or provide any information from which a magistrate could infer that two different CIs were involved. In particular, by omitting this information, Anderson is concerned that a reasonable magistrate would inaccurately assume that the same CI conducted all three buys, thus supporting the CI's reliability. (See Def. Reply Br. 2, Dkt. No. 35.)

         At the hearing, Detective Bridges suggested that clarifying the distinct roles of CI-1 and CI-2 “would have only made the paper even stronger.” (Hr'g Tr. 54.) Presumably, the government would argue that multiple controlled purchases by multiple CIs would strengthen a finding of probable cause. However, without any information suggesting that either CI-1 or CI-2 was reliable, the court disagrees and instead finds that the affidavit improperly overstates CI-2's reliability.

         Because the affidavit primarily focuses on the PC buy, CI-2's reliability is a vital component to the finding of probable cause. As written, however, the affidavit suggests that the same CI conducted all the purchases from Anderson (or, as discussed below, that Detective Bridges himself conducted some of the controlled buys-a similarly misleading interpretation of the facts), which improperly bolsters the CI's reliability.[6] See, e.g., Crumb v. United States, 166 F.3d 1213, 1998 WL 789375, at *2 (6th Cir. 1998) (finding that an informant's voluntary cooperation aiding in the issuance of thirty-three prior warrants supported the informant's reliability) (unpublished table decision); United States v. Fairfax, No. 7:05CR00104, 2006 WL 1149209, at *2 (W.D. Va. May 1, 2006) (considering an informant's prior cooperation in determining the informant's reliability).

         Without a distinction between informants, Detective Bridges had clear reason to doubt the accuracy of his affidavit. A reasonable magistrate would easily rely on the first paragraph of Attachment A to conclude that the CI involved in the PC buy had a history of cooperation with the Department, ...


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