Opinion
CRIMINAL 1:22-CR-18-1
12-01-2022
UNITED STATES OF AMERICA, Plaintiff, v. BACARRE H. CURTIS, Defendant.
REPORT AND RECOMMENDATION RECOMMENDING THAT DEFENDANT'S MOTION TO SUPPRESS [ECF NO. 77] BE DENIED
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
Pending before the undersigned Magistrate Judge is Defendant Bacarre H. Curtis's (“Defendant”) Motion to Suppress Evidence [ECF No. 77], including a legal memorandum in support, filed on October 20, 2022. By Order dated October 21, 2022 [ECF No. 78], the Hon. Thomas S. Kleeh, Chief United States District Judge, referred the motion to the undersigned for conducting a hearing and entering a report and recommendation as to disposition of the motion.
The Court also is in receipt of the Government's response in opposition to Defendant's motion, filed on November 3, 2022. [ECF No. 80]. The undersigned conducted a hearing on Defendant's motion on November 7, 2022, at which the Court heard witness testimony and accepted exhibits into evidence.
Based on a detailed review of Defendant's motion and memorandum in support [ECF No. 77], the Government's response [ECF No. 80], the exhibits introduced into evidence at the hearing on Defendant's motion, and the testimony given by witnesses at said hearing, the undersigned RECOMMENDS that Defendant's motion be DENIED as set forth herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant stands accused in a six-count indictment which a Grand Jury returned against him on March 1, 2022. [ECF No. 1]. Defendant is named in the Indictment as follows: (1) in Count One with the offense of Conspiracy to Distribute Methamphetamine, in violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b)(1)(C); (2) in Counts Two, Three, and Four with the offense of Distribution of Methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C); (3) in Count Five with the offense of Possession with Intent to Distribute Methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C); and (3) in Count Six with the offense of Possession of a Firearm During and in Relation to a Drug Trafficking Crime (that being the crime charged in Count Five of the Indictment), in violation of Title 18, United States Code, Section 924(c)(1)(A)(i).
Beginning of October 2021, Defendant came to the attention of officers working with the Greater Harrison County (West Virginia) Drug and Violent Crimes Task Force (“Task Force”). A confidential informant (“CI”) who had been active with the Task Force in previous years provided information to officers about Defendant's alleged drug distribution activity in the local area. The CI first provided information to officers about a planned delivery of controlled substances at a McDonald's restaurant on West Pike Street in Clarksburg, West Virginia. Officers ultimately did not intercede in that delivery or otherwise witness it. However, via the CI, Detective Cameron Golden (“Golden”), working undercover, made telephone contact with Defendant. As a result of the CI connecting Golden to Defendant, Golden allegedly arranged a series of controlled buys of methamphetamine from Defendant, from November 2021 to January 2022.
During the last of the controlled buys, on January 11, 2022, Task Force officers orchestrated an arrest of Defendant and his co-defendant, Darius D. Robertson (“Robertson”). In the course of the arrest of the two defendants, an inventory search of the vehicle in which they were travelling, and a subsequent search of that vehicle pursuant to the search warrant in question herein, officers recovered certain quantities of methamphetamine (some of it packaged for apparent distribution), a large amount of United States currency, cellular telephones, and a pistol.
Defendant challenges the propriety of the search warrant for the vehicle in which he was travelling at the time of arrest. He disputes the factual underpinnings in support of law enforcement's application for the search warrant, and thus disputes there was probable cause for the search. The Government, however, emphasizes the thoroughness of law enforcement's investigation and development of facts in support of the request for the warrant. As such, the Government argues, the resulting application and affidavit for a search warrant of Defendant's vehicle, search of the vehicle, and seizure of evidence therefrom, all were lawful.
II. SUMMARY OF TESTIMONY AND OTHER EVIDENCE
During the aforementioned suppression hearing on November 7, 2022, the Court heard sworn testimony from two witnesses, namely, (1) Golden, noted above, who is a detective with the Bridgeport (West Virginia) Police Department and is assigned to the Task Force, and (2) Sgt. Robert Ankrom (“Ankrom”), who works for the Harrison County Sheriff's Department and is assigned to the Task Force. The Court also received into evidence the following [ECF No. 82]:
1. Government's Exhibit 1, Ankrom's application for a search warrant of Defendant's vehicle, including his affidavit in support of the application, and the search warrant issued by a state circuit judge.
This same exhibit also is included as Exhibit 1 of Defendant's Motion to Suppress Evidence. [ECF No. 77-1]. As noted in the suppression hearing, the pages of the affidavit all are included but are out of order.
A. Golden's Testimony
The Government called Golden to testify. According to his testimony, in his role with the Task Force, Golden had worked with the CI as far back as 2017. [11:04:15 to 11:04:29]. This same CI provided information to the Task Force giving rise to the investigation of Defendant herein. [11:04:30 to 11:04:49]. Specifically, in October of 2021, the CI provided information about a planned delivery of controlled substances at a McDonald's restaurant on West Pike Street, in Clarksburg, West Virginia. [11:05:01 to 11:05:23]. Given that information, Golden asked the CI to connect him with an individual involved with that planned delivery, to determine if they could supply Golden with controlled substances. [11:05:40 to 11:05:56]. Golden had the CI send a text to the telephone number (“target number”) of that individual to see about making that connection. [11:05:57 to 11:06:11]. Golden had the CI indicate to the target number that he was interested in purchasing one-fourth pound of methamphetamine, and directed the CI to inquire about the price. [11:06:12 to 11:06:27]. The individual at the target number replied to the CI by text to indicate “of course,” and provided a price of $2,000.00. [11:06:28 to 11:06:42].
The citations here to times in brackets correspond to the times of the Court's archived audio recording of the suppression hearing on November 7, 2022, which is located on the section of the Court's intranet site for FTR recordings.
The Task Force identified the CI by its internal designation number, 17I031.
Then, working undercover, Golden himself made contact with the target number. [11:06:57 to 11:07:03]. In so doing, on November 1, 2021, Golden arranged the controlled purchase of one-fourth pound of methamphetamine, for the price of $2,000.00. [11:07:05 to 11:07:40]. Golden effectuated the purchase at a Wal-Mart parking lot on Emily Drive in Harrison County, West Virginia. [11:07:45 to 11:07:53]. In the interim, the target had been identified as “TJ.” [11:07:55 to 11:08:48]. TJ exited a Chevrolet Equinox automobile (with tags bearing West Virginia registration DBR383) and entered Golden's undercover vehicle. Id. TJ provided four plastic bags containing a crystal substance, which weighed, in total, approximately 119 grams inclusive of packaging. Id. The substance field tested positive for methamphetamine. Id. After the controlled purchase, TJ counted the money which Golden had handed to him, then exited Golden's vehicle and returned to the Chevrolet Equinox. [11:08:49 to 11:09:08]. Task Force officers captured the transaction by audio and video recording. [11:09:25 to 11:10:36]. Subsequent laboratory testing revealed the substance which Golden purchased at the controlled buy to be approximately 109 grams of 100 percent pure methamphetamine. [11:10:37 to 11:10:47].
As set forth elsewhere herein, it is helpful to know that Defendant was observed travelling in a Chevrolet Equinox during two of the three controlled purchases in which he is alleged to have been involved. However, Defendant travelled in two different Chevrolet Equinox vehicles; one had a West Virginia license plate, and the other had a Michigan license plate. The vehicle with the Michigan license plate is the one in which Defendant was travelling at the time of his arrest, and is the vehicle which officers ultimately searched pursuant to the search warrant which Defendant challenges here.
In the days following the controlled buy of November 1, 2021, Golden continued to exchange text messages with TJ. [11:10:57 to 11:11:15]. TJ indicated that he was leaving the area for a few days but would be returning. Id.
After the controlled purchase of November 1, 2022, Golden sent a picture of TJ's face, captured during that controlled purchase, to the Michigan State Police. [11:11:22 to 11:11:34]. The Michigan State Police used facial recognition software to identify TJ as Bacarre H. Curtis, Defendant herein. [11:11:35 to 11:11:41].
Continuing to work undercover, Golden then arranged with Defendant for another controlled purchase, on December 16, 2021. [11:11:43 to 11:12:07]. Golden arranged to purchase two ounces of methamphetamine in exchange for $1,100.00. Id. Golden did so by a telephone call to the target number, which he recorded. Id. The parties arranged to meet at a convenience store on Wilsonburg Road, near Clarksburg, Harrison County, West Virginia. [11:12:08 to 11:12:13]. At the controlled buy, Defendant exited a black Jeep Cherokee vehicle (with Michigan tags) [11:12:14 to 11:12:30]. Defendant entered Golden's vehicle. Id. Defendant provided two plastic bags containing a crystal substance, which in total weighed approximately 58 grams with packaging. [11:12:31 to 11:12:41]. The substance later field tested positive for methamphetamine. [11:12:42 to 11:12:45]. While Defendant still was in Golden's vehicle, Golden discussed with Defendant the price for one pound of methamphetamine. [11:12:46 to 11:12:58]. Defendant told Golden that he also had both heroin and fentanyl to sell, giving a price for a quantity of each. [11:13:00 to 11:13:14]. Task Force officers captured both video and audio recordings of the controlled buy of December 16, 2021. [11:13:29 to 11:13:59]. Subsequent laboratory testing of the substance purchased during the controlled buy of December 16, 2021 showed the substance to be approximately 55.8 grams of 100 percent pure methamphetamine. [11:14:00 to 11:14:08].
Continuing to work undercover, Golden communicated with Defendant by text message between December 30, 2021 and January 9, 2022, discussing the prices and weights of controlled substances which Defendant could sell. [11:14:15 to 11:14:33]. To this end, on January 10, 2022, Golden placed a telephone call to the target number. [11:14:35 to 11:15:14]. Golden's aim was to organize a controlled buy of one pound (or 453 grams) of methamphetamine. Id. The purchase price was to be $7,000.00. Id. When Golden placed the telephone call, a male who was not Defendant answered. [11:15:15 to 11:15:32]. This person identified himself as “the other one” and indicated that he and Defendant still were in the local area. Id. A few minutes later, Defendant himself placed a telephone call back to Golden. [11:15:33 to 11:15:53]. Defendant indicated that he possessed the controlled substances which Golden sought, but had not parsed it out into packaging for distribution. Id.
The next day, January 11, 2022, Golden still was working undercover, and by text messages and recorded telephone calls, he arranged the location of the next controlled purchase. [11:15:54 to 11:16:09]. Members of the Task Force prepared for this to be a “buy-bust” operation. [11:16:10 to 11:16:45]. Golden explained that a “buy-bust” operation involved both a controlled purchase of illicit substances as well as the positioning of an arrest team to effectuate the arrest of a subject. Id.
Golden had arranged for the controlled purchase at the parking lot of a furniture store on Emily Drive, in Clarksburg, Harrison County. [11:16:48 to 11:16:52]. At the site of the controlled purchase, Defendant and Robertson exited a Chevrolet Equinox vehicle (with tags bearing Michigan registration EHZ567) and both of them approached Golden's undercover vehicle. [11:16:53 to 11:17:10]. Defendant entered the front seat of Golden's vehicle while Robertson sat in the back seat of the vehicle. [11:17:11 to 11:17:46]. Defendant explained to Golden that Robertson would count the money which Golden exchanged for the controlled substances. Id. After the exchange, Defendant and Robertson exited Golden's vehicle, and Golden drove away from the scene. [11:17:47 to 11:18:14]. While driving away, Golden signaled to other officers to initiate a “takedown” of Defendant and Robertson. Id.
During the arrest of the two, officers seized the $7,000.00 sum which Golden had used to effectuate the purchase moments before. [11:18:15 to 11:18:24]. They also seized an additional $602.00 in United States currency. Id. Additionally, officers seized four mobile telephones. [11:18:25 to 11:18:30]. Upon officers' further inspection of the crystal substance obtained during the controlled purchase of January 11, 2022, the substance weighed 503 grams with packaging and field tested positive for methamphetamine. [11:18:31 to 11:18:56]. Officers obtained audio and video recordings of the controlled purchase. [11:19:04 to 11:19:07]. Subsequent laboratory testing of the substance purchased showed it to be approximately 450 grams of 100 percent pure methamphetamine. [11:19:08 to 11:19:16].
The next day, January 12, 2022, Ankrom applied for, and obtained, two search warrants. [11:19:27 to 11:19:34]. One of the search warrants was for the Chevrolet Equinox in which Defendant had arrived at the controlled purchase of January 11, 2022. Id. This vehicle had been impounded after the “buy-bust” operation the previous day. [11:19:35 to 11:19:40]. On January 13, 2022, three officers executed the search warrant of the Chevrolet Equinox - Golden, Ankrom, and Harrison County Sheriff's Deputy Wes Harkins (“Harkins”). [11:19:41 to 11:20:07]. Harkins was working with a K-9 partner, and the K-9 indicated on the center console of the vehicle. [11:20:08 to 11:20:20]. Ankrom lifted the lid of the center console and found a Glock 9 mm pistol. [11:20:21 to 11:20:53]. The pistol featured a mounted laser sight and an extended magazine. Id. Ankrom also found a vacuum-sealed bag with suspected methamphetamine. Id. Officers' subsequent check of the pistol revealed that it was stolen on July 26, 2011 in Dallas, Texas from an off-duty FBI agent. [11:20:54 to 11:21:03]. As for the bag of suspected methamphetamine, it actually contained seven individually wrapped bags of substances, and weighed 231 grams with packaging. [11:21:04 to 11:21:18]. The substance field-tested positive for methamphetamine; subsequent laboratory testing confirmed that the substance was approximately 194 grams of 100 percent pure methamphetamine. [11:21:29 to 11:21:46].
On cross-examination, counsel asked Golden about how he gleaned knowledge of the CI in September 2021. Golden clarified that the information which the CI had relayed to law enforcement about a delivery of controlled substances at the McDonald's on West Pike Street had been through Ankrom, not directly from the CI to Golden himself. [11:23:45 to 11:24:06]. However, through his work with Ankrom in prior years, Golden knew the CI to have provided reliable, accurate information. [11:24:07 to 11:24:45]. For the delivery at the McDonald's, Golden had learned from Ankrom that the CI had stated that three individuals were supposed to be there to purvey the controlled substances, and would be traveling in a green Kia automobile. [11:25:23 to 11:24:48]. Golden clarified that this was not a controlled purchase arranged by undercover officers, but rather, concerned delivery of controlled substances in which law enforcement was not involved. [11:24:49 to 11:26:44]. Golden and Ankrom traveled to the McDonald's in an attempt to witness the delivery which the CI had described, but did not see any indicia of such a delivery. [11:28:31 to 11:28:45].
On re-direct examination, Golden stated that when officers executed the search warrant of the vehicle, they did so based on the good faith belief that they were doing so pursuant to a valid search warrant. [11:51:50 to 11:52:03]. Golden further explained that although he did not review the search warrant and associated materials in detail, he was aware of the how the search warrant limited officers to a search of that particular vehicle, for a specific purpose (drug distribution activity). [11:52:04 to 11:52:20].
B. Ankrom's Testimony
The Government called Ankrom to testify. Ankrom testified that he was a member of the Task Force in 2017 and, at that time, was the handler for the CI who later provided information giving rise to the investigation which is at issue here. [11:56:25 to 11:56:37]. Ankrom's experience with the CI is that they provided reliable, truthful, and credible information. [11:56:38 to 11:58:09]. The CI also had provided information to Ankrom in September 2021 that three black males from Detroit, Michigan were in the area of Clarksburg, Harrison County. [11:58:10 to 11:58:23]. More specifically, on September 29, 2021, the CI provided information about how these three black males were connected with persons known to be sources of distribution of drugs in the Clarksburg area. [12:01:31 to 12:02:44]. Ankrom detailed this in his affidavit in support of his application for a search warrant for Defendant's vehicle. [ECF No. 77-1, at 13].
One month later, on October 29, 2021, the CI provided information to Ankrom that these individuals would be at the McDonald's on West Pike Street. [12:04:39 to 12:05:08]. The CI further provided information that the individuals would be traveling by a green Kia automobile and had “a couple” of pounds of methamphetamine to deliver. Id. The CI stated that they had firsthand knowledge of the transaction. [12:05:09 to 12:05:16]. However, this transaction was not a controlled purchase with law enforcement, and Ankrom was unable to observe it. [12:05:17 to 12:05:30]. Ankrom could not corroborate that the transaction occurred. [12:05:31 to 12:05:46].
In the course of interactions with the CI, the CI explained that they did not know the names of the three black males from Detroit, but had a mobile telephone number for one of them. [12:06:09 to 12:06:42]. This telephone number is the same as the target number which Golden described in his testimony. Id. During a telephone conference call among Ankrom, Golden, and the CI, Ankrom heard Golden ask the CI to introduce him to these individuals in order to attempt a controlled purchase. [12:06:51 to 12:07:52]. Golden asked the CI to inquire of the target about purchasing one-fourth pound of methamphetamine and to ask about the price. [12:08:22 to 12:08:31]. The CI relayed this request to the target number by text, and got a reply saying “of course” and providing a purchase price of $2,000.00. [12:08:32 to 12:08:52]. Ankrom detailed this in his affidavit in support of his application for a search warrant for Defendant's vehicle. [ECF No. 77-1, at 13].
As for the controlled purchase on November 1, 2021, Ankrom explained that Golden was the officer working undercover to effectuate the purchase of one-fourth pound of methamphetamine in exchange for the $2,000.00 sum. [12:09:15 to 12:09:34]. Ankrom explained that he was on the periphery of the controlled purchase scene, providing surveillance and security. [12:09:54 to 12:11:06]. Ankrom observed the arrival of the vehicles to the scene of the controlled purchase; observed Defendant arrive in a Chevrolet Equinox, exit it, and enter Golden's undercover vehicle; and observed Defendant return to the Chevrolet Equinox after the controlled purchase. [12:11:07 to 12:11:37]. Resulting from this controlled purchase, Ankrom applied for a search warrant on November 3, 2021, seeking historical cell data for the target number from the wireless telephone carrier. [12:13:10 to 12:14:47]. On November 9, 2021, Ankrom received the data sought from the wireless carrier. [12:14:48 to 12:15:22]. In reviewing the text messages provided by the wireless carrier, Ankrom reviewed communications between the target number and other numbers concerning the distribution of controlled substances, including information about weights, prices, and addresses. Id. Ankrom detailed this in his affidavit in support of his application for a search warrant for Defendant's vehicle. [ECF No. 77-1, at 15].
Prior to the controlled purchase on December 16, 2021, Task Force officers were able to identify Defendant. [12:15:35 to 12:15:41]. This was based on Golden's sharing a photograph of Defendant's face with the Michigan State Police, and that agency identifying Defendant via facial recognition software. [12:15:43 to 12:15:58]. Ankrom detailed this in the affidavit in support of his application for a search warrant of the vehicle in which Defendant was traveling at the time of his arrest. [12:16:00 to 12:16:32]. [ECF No. 77-1, at 15].
As for the controlled purchase on December 16, 2021, Ankrom explained that he himself was not present for it. [12:12:40 to 12:13:00]. He did, however, later watch a video recording of it, which was captured by another officer. [12:17:35 to 12:17:55]. Ankrom detailed this in the affidavit in support of his application for a search warrant the vehicle in which Defendant was traveling. [ECF No. 77-1, at 14].
As for the controlled purchase on January 11, 2022, Ankrom explained that he was present. [12:19:10 to 12:19:18]. Ankrom stated that he was there for security, but due to an unexpected positioning of the vehicle in which Defendant was travelling (the Chevrolet Equinox with Michigan tags), Ankrom could not actually observe the transaction. [12:19:25 to 12:19:37]. Ankrom was present, however, for the eventual takedown/arrests moments after the controlled purchase was effectuated. [12:20:25 to 12:21:09]. Ankrom was aware of the seizure of large amounts of currency and of the four mobile telephones at the time of Defendant's arrest. [12:21:12 to 12:21:54]. Ankrom detailed in Paragraph 19 of his affidavit how drug dealers often utilize multiple cells phones. [12:22:21 to 12:22:45; ECF No. 77-1, at 13].
After the last of these controlled purchases, the one on January 11, 2022, Ankrom applied for and obtained two search warrants - one for the mobile telephones seized, and one for the vehicle in which Defendant was traveling at the time of his arrest. [12:23:19 to 12:23:30].Attachment III of Ankrom's search warrant application for the Chevrolet Equinox [ECF No. 77-1, at 8] described the property to be searched, including a photograph of the front of the vehicle and a short narrative setting forth (a) the Michigan plate registration number, (b) the vehicle identification number, and (c) the registered owner of the vehicle. [12:24:20 to 12:25:17]. In the application for a search warrant, Ankrom explained in Attachment IV [ECF No. 77-1, at 16] that he contacted the owner of the vehicle, an entity, and learned that it had been rented to an individual (not either of the defendants herein) on January 8, 2022, and that no other persons were authorized to drive the vehicle. [12:25:41 to 12:26:40]. Ankrom explained how the materials in support of his request for a search warrant of the vehicle delineate among the vehicles in which officers had observed Defendant travelling during the controlled purchases - such that Ankrom was careful to direct that judicial officer's attention, and the resulting search, to a specific vehicle. [12:26:41 to 12:28:49].
Ankrom explained that the Chevrolet Equinox in which Defendant was travelling at the time of his arrest, and which was the subject of the search warrant which Ankrom sought, was a different vehicle from the Chevrolet Equinox in which Defendant was travelling at the time of the controlled purchase on November 1, 2021. [12:23:35 to 12:23:47].
In sum, Ankrom testified how the first attachment in support of his application for a search warrant for the vehicle explained the offense for which officers would be looking for evidence; the second attachment listed the property to be seized; the third attachment described the vehicle to be searched; and the fourth attachment described Ankrom's knowledge, experience, and qualifications, and set forth the supporting statement of probable cause for the issuance of the search warrant. [12:29:05 to 12:30:43]. As to the last of these, the probable cause statement, Ankrom provided information about each of the controlled purchases in which Defendant had been involved, and information about communications with Defendant leading up to those purchases. Id. Ankrom testified that when he sought the search warrant from the state circuit judge, he swore an oath as to the truthfulness of the application for a warrant, the judge reviewed all of the materials, and the judge signed off on the warrant. [12:31:12 to 12:31:25]. Ankrom stated that officers executed the search warrant of the vehicle based on Ankrom's good faith belief that the search warrant was valid, based on: (a) the search warrant describing the property to be searched, (b) the search warrant describing the items to be seized, (c) the search warrant being based on probable cause, (d) the search warrant being supported by an oath or affirmation, and (e) the search warrant being signed by a neutral, detached circuit judge. [12:33:30 to 12:34:25].
III. LEGAL ISSUES AND ANALYSIS
Defendant makes several arguments about how law enforcement operations were inappropriate, such that the ultimate issuance of a warrant to search the vehicle in which Defendant was travelling at the time of arrest, was invalid. First, he argues that the affidavit in support of a search warrant of Defendant's vehicle was deficient in that lacked information about the CI's credibility and law enforcement's use of the CI in years past. Second, he argues that the information provided by the CI about a delivery of controlled substances at the McDonald's on West Pike Street was not corroborated or reliable, such that its inclusion in the affidavit to establish probable cause was inappropriate.
Third, Defendant argues, the information which law enforcement provided in the affidavit was misleading. Defendant takes issue with the manner in which the information was presented. Specifically, Defendant seems to take issue with how the two different Chevrolet Equinox vehicles in which Defendant travelled for two different controlled purchases were described in the affidavit, suggesting that it may have confused the judicial officer issuing the warrant. Plus, during the hearing before the undesigned, Defendant took issue with how the identifying information about the vehicle to be searched (e.g. license plate/registration number) was included in a standalone paragraph in the affidavit, instead of included in the same paragraph as in another description of a separate controlled purchase elsewhere in the affidavit. Thus, Defendant maintains that the search warrant for the vehicle was defective.
Fourth and finally, Defendant states that the search warrant for the eventual search of the vehicle was not sought or executed in good faith. Thus, Defendant argues, this gives rise to a violation under Franks v. Delaware, 438 U.S. 154 (1978) (holding that if a statement in support of an affidavit for a search warrant is (a) necessary to show probable cause and (b) is knowingly or intentionally false, or made with reckless disregard for the truth, then a criminal defendant may request a hearing to probe the affidavit's sufficiency).
The Government argues that Defendant's emphasis on the CI is inapposite. First, the Government stresses, detail in the affidavit for the search warrant concerning the CI's work with law enforcement in the years preceding the investigation was not crucial to the issues herein; rather, the notation about work in past years was merely for context and background. As for the CI's information about the purported delivery of controlled substances at the McDonald's, the lack of officers' corroboration of the delivery does not make the information false or mean that it did not happen. More importantly, per the Government, even without information about the delivery at the McDonald's, the affidavit otherwise was supported by thorough information gleaned over weeks of a direct investigation of Defendant. This included information about controlled purchases from Defendant, audio and video recordings obtained during the purchases, officer observations, and the like. Thus, the affidavit was supported by probable cause.
Second, the Government argues, in the alternative, even if there was no probable cause to support the affidavit, the search of Defendant's vehicle is valid under the good-faith exception set forth in United States v. Leon, 468 U.S. 897 (1984). Third and finally, the Government emphasizes that there is no basis for the Court to conduct a Franks hearing herein. Per the Government, there were no materially false statements or omissions in the affidavit in support of the search warrant. Defendant carries the burden of showing the need for a Franks hearing, and the Government argues that he has not done so.
A. Legal Principles
The foundational principle here is that the Fourth Amendment of the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Of particular importance to the inquiry here, “no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. Moreover, “the general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 700 (1981). As a corollary, the “exclusionary rule” provides that a court should exclude evidence obtained by dint of law enforcement's unlawful arrest or search. See Mapp v. Ohio, 367 U.S. 643 (1961). Relatedly, however, a court should suppress evidence in a criminal matter “only ... where its deterrence benefits of exclusion outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citations and quotations omitted).
In the instant matter, Defendant challenges the existence of probable cause in law enforcement's application for a search warrant. To this end, as the Fourth Circuit has instructed:
[T]he concept of probable cause is not subject to a precise definition. See United States v. Richardson, 607 F.3d 357, 369 (4th Cir.2010). Nevertheless, the Supreme Court has explained that probable cause plainly “exist[s] where the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). An assessment of the presence of probable cause must be based on the totality of the relevant circumstances, rather than on the technical or rigid demands of a formulaic legal test. See Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Blackwood, 913 F.2d 139, 142 (4th Cir.1990). In making a probable cause assessment, a judicial officer must simply make “a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317.United States v. Allen, 631 F.3d 164, 172 (4th Cir. 2011). Yet, as the Supreme Court has long established:
Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.Gates, 462 U.S. at 239. “An affidavit [accompanying an officer's application for a search warrant] must provide the magistrate with a substantial basis for determining the existence of probable cause, and [a] wholly conclusory statement. . .” is insufficient. Id. Nonetheless, once a “neutral and detached magistrate” discerns probable cause in support of issuing a search warrant, that judicial officer's determination receives “great deference by reviewing courts.” Id. at 236, 240.
Even if a search warrant is defective, the Leon good faith exception may salvage an otherwise defective warrant. United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court held the Fourth Amendment's exclusionary rule does not bar the admission of evidence obtained by officers acting in objectively reasonable reliance on a search warrant which was issued by a detached and neutral magistrate but ultimately found to be invalid. Id. See also United States v. Edwards, 798 F.2d 686, 690 (4th Cir. 1986). “Leon teaches that a court should not suppress the fruits of a search conducted under the authority of a warrant, even a ‘subsequently invalidated' warrant, unless ‘a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.'” United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002). In other words, “[u]nder the good faith exception, evidence obtained from an invalidated search warrant will be suppressed only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Lalor, 996 F.2d 1278 (4th Cir. 1993).
B. Analysis
In the case at bar, the necessary sequential analysis is as follows. The first issue is whether there was probable cause for the judicial officer to issue the search warrant in question. The second issue, alternatively, is if there was not probable cause, whether the Leon good faith exception applies to nevertheless render the search and seizure proper. Third and finally, the Court must address whether a Franks hearing must be conducted.
1. Probable cause existed for the state circuit judge to issue the search warrant for the vehicle in which Defendant was travelling at the time of arrest.
Defendant's focus on (a) the lack of background detail about the CI, and (b) the uncorroborated planned delivery of controlled substances at the McDonald's on West Pike Street, is unavailing. These are not defects in Ankrom's probable cause affidavit.
As for the CI's prior work with the Task Force, certainly, Ankrom's affidavit did not detail precisely how he had found the CI to be reliable in past investigations. The affidavit states, simply, that the CI “was activated in 2017. CI has provided reliable, truthful and credible information in the past that I have confirmed by my independent corroboration.” [ECF No. 77-1, at 13]. But the lack of such detail is not the least bit uncommon or improper. This information merely helps to shape the remainder of the affidavit, giving context for the great level of detail thereafter provided in the affidavit as to the investigation of Defendant's alleged drug distribution activities. In other words, the statement about the CI's past work with the Task Force is merely the beginning - not the end - of how Ankrom detailed probable cause to search the vehicle.
The statement about past reliance on the CI, sparse as it may be, simply illustrates how, eventually, (a) Task Force officers learned that Defendant and associates, black males from Detroit, were distributing drugs in the local area, (b) Golden (and Ankrom) obtained the target mobile telephone number by which Golden ultimately made contact with Defendant to arrange for controlled purchases of methamphetamine, and (c) Golden met with Defendant to effectuate these controlled purchases. Remarkably, Ankrom's affidavit is eight pages of single-spaced text, comprised of 54 separately numbered paragraphs, plus a ninth page which is a signature/oath page.
The bulk of Ankrom's affidavit sets forth how Task Force officers then proceeded with their own undercover operation (in essentially the same fashion as Golden's and Ankrom's testimonies are summarized above). Officers corroborated the CI's information about black males from the Detroit area engaged in drug distribution in the local area. To this end, officers made contact with Defendant via a mobile telephone number provided by Defendant, worked with Michigan State Police to ascertain Defendant's origin in Michigan and his identity, and determined that Defendant used vehicles with Michigan license plates in two of the three controlled purchases. And officers appear to have conducted this lengthy operation only with the CI's initial involvement. That is to say, a great deal of Ankrom's probable cause statement does not even rely on information gleaned from the CI, as the CI does not seem to have been involved once they helped Golden make initial contact with Defendant. Even if the CI was unreliable (and the undersigned does not find that they were), the information provided by the CI is but a small part of the substantial evidence otherwise set forth in Ankrom's probable cause affidavit.
To be clear, the search warrant which Defendant challenges allowed a search of the vehicle in which Defendant was travelling at the time of his arrest. Defendant appears to challenge the propriety of the search of a vehicle specifically. [ECF No. 77, at 7]. Defendant seems to focus on the fact that the vehicle which was searched was driven to only one of the three controlled purchases, and that that controlled purchase occurred in Golden's undercover vehicle, not the vehicle in which Defendant travelled. However, there was nothing untoward about a search of Defendant's vehicle. Officers allege that they previously had effectuated controlled buys of large quantities of methamphetamine from Defendant; in each of those buys, Defendant travelled by vehicle to and from the sites of the buys. Thus, officers reasonably could surmise that Defendant may have been engaged in distribution other than with an undercover officer (here, Golden). And, therefore, a search of a vehicle in which Defendant was travelling moments after a controlled purchase could well contain evidence of drug distribution activity. To this end, Ankrom's probable cause affidavit sets forth, in painstaking detail, how their investigation culminated in the “buy and bust” operation where the subject vehicle was located. The only commonsense conclusion is that Ankrom established probable cause to search the vehicle which was the focus of the search warrant, per the requirements and parameters set forth in Allen, Gates, and their progeny.
As for the portion of the affidavit about the CI reporting on a purported delivery to take place at the McDonald's on West Pike Street [ECF No. 77-1, at 13], the Government acknowledges that law enforcement did not corroborate that such a delivery occurred. But this is a non-issue. This information about the delivery at the McDonald's is but a small amount of the several pages of information provided in the affidavit. Clearly, it is included for context and background, showing when officers began to rely on the CI vis-a-vis Defendant's activities herein. There is nothing false about it; Ankrom does not state that the delivery occurred or that he or any other officer observed it occurring. In fact, Ankrom states in the affidavit that he made contact with the CI who advised that the individuals involved already had left the McDonalds - clearly acknowledging that he himself did not observe a delivery there. And as the Government rightly points out, just because officers did not witness the delivery does not mean that it did not happen.
In any event, information about a delivery at the McDonalds is but a small part of the narrative to show how officers then took the next steps of their operation - by having the CI connect them to Defendant using the target mobile telephone number. From that point, over the course of several weeks, officers allegedly were able to effectuate three controlled purchases of methamphetamine from Defendant, culminating in Defendant's arrest and the request for a warrant to search the vehicle in which Defendant was travelling at that time. Thus, the judicial officer certainly had a “substantial basis” as required by Gates to determine that probable cause existed to issue the search warrant in question.
In sum, the undersigned FINDS that law enforcement articulated probable cause for issuance of the search warrant for the vehicle in which Defendant was travelling. Therefore, the undersigned FINDS that the search warrant, as issued, was proper.
2. Even if probable cause did not exist for the search warrant to issue, the Leon good faith exception applies such that the search and seizure of the vehicle were lawful.
To be clear, as concluded above, there was probable cause for issuance of the warrant to search the vehicle in which Defendant was travelling at the time of his arrest. Yet, as also noted above, even if there is not probable cause, if an officer executes a search warrant in good faith, Leon and its progeny may render evidence admissible nonetheless. This is an objective inquiry for the Court to make, in view of what a reasonable officer would understand of the situation, and “not an examination of an officer's subjective motives.” United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995).
In the instant matter, Defendant would have the Court find that Ankrom mishandled the probable cause affidavit by including statements which are materially false, or by making material omissions. In so doing, Defendant posits, Ankrom misled the judicial officer who issued the search warrant.
Specifically, Defendant first impugns the CI as summarized in the preceding subsection regarding probable cause. However, for the reasons set forth in the preceding subsection, the undersigned disagrees with Defendant on this point. After all, the Task Force investigation, which unfolded after the CI's initial involvement, corroborated and further bolstered the information which the CI had provided. As noted above, all of the information was set forth in great detail in Ankrom's affidavit. As such, officers had only good faith in executing the search warrant of the vehicle, such that the Leon good faith exception salvages the warrant in the unlikely event that it is defective.
Secondly, Defendant also, confusingly, takes issue with how the two different Chevrolet Equinox vehicles - which were utilized in two different controlled purchases - are depicted in the affidavit for the search warrant. Defendant believes that the judicial officer who issued the search warrant could have conflated the two different vehicles. Defendant also highlights how identifying information of the target vehicle is set forth in a paragraph differently than the information describing a vehicle which the Defendant earlier utilized (and which was not the subject of the search warrant). However, Defendant does absolutely nothing to explain how, even if the judicial officer drew this unlikely conclusion, it makes the warrant deficient. The undersigned explored this issue with Defendant's counsel at the suppression hearing, and received no clarification on the issue. Defendant glosses over how the application for a search warrant included a description of the target vehicle with Michigan plates, the plate registration number, the identity of the registered owner (a rental company), and a photograph of the vehicle. Defendant does not specify how the description of the property to be searched could have been more specific or thorough. There was nothing materially false about the application, nor was there a material omission. Officers had every reason to rely on the search warrant in good faith, such that Leon applies to salvage any (unlikely) defect in the warrant.
Thus, the undersigned FINDS that the search warrant in question was facially valid, such that the Leon good faith exception applies to save the warrant from challenge.
3. Defendant did not establish a basis to conduct a Franks hearing.
Defendant would have the Court find that Ankrom included material false statements or omissions in the application for a search warrant, and did so intentionally or recklessly so as to mislead the judicial officer who issued the warrant in question. Defendant thus requests a Franks hearing. The Fourth Circuit has explained the mechanics of a Franks hearing:
An accused is generally not entitled to challenge the veracity of a facially valid search warrant affidavit. In its decision in Franks v. Delaware, however, the Supreme Court carved out a narrow exception to this rule, whereby an accused is entitled to an evidentiary hearing on the veracity of statements in the affidavit. See 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To be entitled to a Franks hearing, however, the accused must make a substantial preliminary showing that false statements were either knowingly or recklessly included in an affidavit supporting a search warrant and that, without those false statements, the affidavit cannot support a probable cause finding. See id. Therefore, if the allegedly false statements are not necessary for the probable cause finding, the accused is not entitled to a Franks hearing.Allen, 631 F.3d at 171 (4th Cir. 2011).
In the case at bar, Defendant has not made the requisite showing that he is entitled to a Franks hearing. Defendant has the burden, under Allen, above, to make a “substantial preliminary showing” of the need for such a hearing. In so doing, Defendant must show, per Allen, that (a) law enforcement made false statements, (b) those false statements were including in the probable cause affidavit knowingly or recklessly, and (c) those false statements were necessary for the probable cause finding by the judicial officer who issued the warrant.
Here, however, Defendant's effort fails. Per evidence and testimony presented at the suppression hearing, nothing about Ankrom's statements in the probable cause affidavit were false, nor were there omissions of necessary information. As already set forth herein, Ankrom described the vehicle to be searched with particularity - its make and model, its license plate with registration number and state of origin, its owner, and a photograph of it. Nothing about that presentation of information was false. And if Defendant's argument is that it somehow could have led to confusion with a different vehicle of the same make and model which was utilized in an earlier controlled purchase, again, that is unavailing.
Separately, for any complaint which Defendant has about the information which the CI provided giving rise to a Franks inquiry, that is unfounded. As set forth in the preceding subsection, the CI's information ultimately was corroborated and resulted in a direct link of an undercover operative to Defendant and his alleged drug distribution activity.
Defendant also seems to complain that the affidavit is deficient because officers did not find incriminating evidence in the inventory search of the vehicle besides four mobile telephones. However, as the Government rightly points out in response, the vehicle to be searched was the one in which Defendant was travelling moments after allegedly selling a pound of methamphetamine to an undercover officer. And the arrest of Defendant at that time was the culmination of a series of undercover controlled purchases involving Defendant. It only stands to reason that the vehicle well could have contained evidence of distribution of controlled substances.
In short, Ankrom's application and affidavit explained precisely which vehicle officers wished to search, and why. Any other reading of the affidavit and supporting materials is nonsensical, and Defendant fails to meet the first prong of the inquiry to show that the affidavit contained false statements.
Because Defendant fails to meet the first prong of the inquiry, then of course he fails to meet the remaining two prongs. To be clear, though, as to the second prong, because there were no false statements, it is unnecessary to inquire about whether they were included knowingly or recklessly. Nonetheless, the undersigned finds absolutely nothing but good faith and accuracy in the presentation and issuance of the search warrant. Finally, as to the third prong, because there were no false statements, there is no analysis to determine whether they were necessary to the finding of probable cause.
In sum, then, the undersigned FINDS that Defendant has failed to show that he is entitled to a Franks hearing.
IV. CONCLUSION
Accordingly, based on the foregoing, the undersigned FINDS that Defendant has not made a showing that evidence in this matter should be suppressed. Moreover, the undersigned FINDS that Defendant has failed to show that he is entitled to a Franks hearing. Thus, for the reasons set forth herein, the undersigned RECOMMENDS that Defendant's Motion to Suppress Evidence [ECF No. 77] be DENIED and that his corresponding request for a Franks hearing also be DENIED.
Any party may, on or before December 8, 2022, file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the presiding United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Although parties usually have 14 days to respond to a Report and Recommendation such as this, that is a maximum time to respond, not a minimum. In this matter, the pretrial conference is scheduled for December 13, 2022 and the jury selection and trial for January 10, 2023, thus there is a shortened period for submission of objections.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk of Court is DIRECTED to transmit copies of this Report and Recommendation to counsel of record as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.