Opinion
5:18-CR-00506-FL-1
06-07-2021
United States of America, v. Zabian Patterson, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Defendant Zabian Patterson claims that the Cumberland County Sheriff's Office violated his Fourth Amendment rights when it executed a search warrant at 4908 Panda Street in Hope Mills, North Carolina. He argues that the affidavit submitted in support of the search warrant did not establish probable cause to search the residence. He argues that it did not include enough information about the reliability and background of a confidential source, did not adequately describe the alleged drug dealer, and was too vague about the details of the controlled purchase. He asks the court to suppress all evidence seized from the property.
Ultimately, after considering Patterson's arguments, the undersigned finds no reason to exclude the evidence involved in this motion. The affidavit's language meets the standard required by cases interpreting the Fourth Amendment. Thus, the undersigned recommends that the district court deny Patterson's motion to suppress.
I. Background
In October 2017, Angelica Condesaavedra, an agent in the Cumberland County Sheriff's Office Narcotics Unit, applied for a warrant to search 4908 Panda Street in Hope Mills. According to the affidavit Condesaavedra submitted with her warrant application, within the past 72-hours a confidential source, working with law enforcement, had bought drugs from someone at that address.
The source, who had proven reliable and truthful in the past, drove to the Panda Street residence with an undercover agent. Before the buy, law enforcement gave the source money that it had photographed to use in the buy. After they arrived, the source knocked on a door at the residence. A black male, who was only known by the name “Black, ” opened the door and the source went inside. The source claimed that he used money provided by the Sheriff's Office to buy drugs from Black. The source then left the residence, returned to the undercover agent's car, and turned the drugs over to the agent. A preliminary analysis of the substance the source bought from Black showed that it was cocaine.
Based on the information in Condesaavedra's affidavit, North Carolina Superior Court Judge James Ammons authorized a search of the Panda Street residence.
When officers executed the search warrant they found five people, including Patterson, at the residence. The search uncovered cell phones, drugs, drug paraphernalia, surveillance equipment, money, four guns, and ammunition.
Patterson now faces three drug- and gun-related charges in this court. D.E. 6. Ahead of his arraignment, he filed a motion asking to suppress the evidence from the search of 4908 Panda Street. D.E. 43.
II. Discussion
The Fourth Amendment to the Constitution provides two distinct, but related protections to the people. To begin with, it provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. And then it then provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id.
Patterson claims that the search of the Panda Street residence violated his Fourth Amendment rights because the warrant application did not establish probable cause to search the property. And he also argues that he is entitled to a Franks hearing because the affidavit omitted key information.
A. Sufficiency of Search Warrant Application
Patterson argues that the supporting affidavit does not establish probable cause to search the Panda Street residence. He claims, among other things, that the information in the warrant fails to establish the source's reliability of the by offering additional facts about his work with law enforcement and his criminal history. Patterson argues that affidavit omitted additional details about the controlled buy. And he claims that the affidavit does not adequately identify the person who sold drugs to the source.
Although Patterson makes several arguments, they all challenge whether there was probable cause to search the residence. Probable cause “‘exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found' in a particular place.” United States v. Doyle, 650 F.3d 460, 471 (4th Cir. 2011) (quoting Ornelas v. United States, 517 U.S. 590, 696 (1996)). In reviewing the issuance of a warrant, courts give “[g]reat deference . . . to . . . a magistrate's assessment of the facts when making a determination of probable cause.” United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992). The determinative question is not whether the reviewing judge believes that there was probable cause to issue the warrant, but “whether the magistrate had a substantial basis for his conclusion that probable cause existed.” Id.
The undersigned concludes that the state judge had a substantial basis to believe that there was probable cause to authorize a search of the Panda Street residence. So the motion to suppress should be denied.
1. Confidential Informant
Patterson claims that the affidavit is flawed because it did not provide enough information about the confidential source. He contends that the affidavit should have included more information about the source's past work with law enforcement, the source's criminal history, and the source's reason for working with law enforcement. The Government disagrees and claims that there is “ample information” about the sources' credibility and reliability.
An informant's “reliability is ‘key' to a magistrate's probable cause analysis when the search warrant application contains information provided by an informant.” United States v. Lull, 824 F.3d 109, 116 (4th Cir. 2016) (citation omitted). And an affiant can establish the informant's reliability by noting that the source had provided reliable information in the past. United States v. Bynum, 293 F.3d 192, 197 (4th Cir. 2002) (“[T]he officer relied not on an unknown informant but one whom he knew and who had provided reliable information in the past that the law enforcement officers had ‘verified.'”); United States v. Chavez, 902 F.2d 259, 264 (4th Cir. 1990) (finding that an informant's reliability may be established by showing that the informant previously gave tips which have proved to be correct or that the information given has been corroborated). Patterson has not directed the court to any authority to the contrary.
Condesaavedra's affidavit provides enough information to meet this standard. It notes that the source had proven reliable in the past. D.E. 43-1 ¶ 6. He had always provided truthful and accurate information before, during, and after every controlled purchase operation. Id. ¶ 11. And the source had given law enforcement information that led to productive search warrants, searches, and arrests. Id. ¶¶ 6, 20. So there was a substantial basis for the judge to believe that the source was reliable.
2. Details About Controlled Purchase
Patterson next claims that the affidavit lacked details about the controlled purchase. He points out that there was no recording of the controlled buy, no description of the amount of drugs and money involved, and no description of the steps law enforcement took to ensure that the drugs the source turned over actually came from 4908 Panda Street. The Government argues that this level of detail is unnecessary and that the information in the affidavit is sufficient.
The Government's argument is persuasive. To begin with, Patterson cites no authority establishing that the Fourth Amendment requires the detailed level of information he desires before probable cause exists. To the contrary, since search warrant affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation . . . courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” United States v. Ventresca, 380 U.S. 102, 109 (1965). And the source had a record of working cooperatively with law enforcement and was with an undercover officer for much of the controlled purchase. When considering the totality of the circumstances, the lack of more information about the controlled buy does not eliminate probable cause to search the residence.
3. Identity of Seller
Patterson's final argument points out that the affidavit provided no other information about the person who allegedly sold drugs to the source other than that his race, gender, and nickname. He notes that there is no information about the seller's connection to 4908 Panda Street or what the seller looked like. The Government responds that while Patterson's argument may have merit when the warrant depends on a specific person's connection to a residence, the argument has no impact because the warrant here stemmed from a controlled purchase.
In deciding if there is probable cause to issue a search warrant, “the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched.” United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6 (1978)). The Fourth Circuit has explained that an affidavit may establish “the nexus between the place to be searched and the items to be seized” through “the nature of the item and the normal inferences of where one would likely keep such evidence.” United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988).
So the determinative question is not who Black was, what he looked like, or what his relationship was with the Panda Street residence. See United States v. Solomon, No. 1:11-CR-32-1, 2011 WL 1704721, at *10 (M.D. N.C. May 4, 2011) (“Nor must the identity of a seller or his precise connection to the residence be established.”), aff'd, 480 Fed.Appx. 732 (4th Cir. 2012). Instead, it is whether, based on the totality of the information in the affidavit, the state court judge had a substantial basis to conclude that there evidence of criminal activity would be found there. And given that a controlled purchase occurred at the residence in the days before the warrant's issuance, there was. See United States v. Allen, 960 F.2d 1055, 1057 (D.C. Cir. 1992) (upholding a search warrant based on “informant's single purchase of a small rock of crack from an unknown individual”). The district court should deny this portion of Patterson's motion to suppress.
B. Request for a Franks Hearing
Patterson next argues that the court should suppress evidence obtained from the search because of the omissions noted above. He seeks a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to explore these issues and have the court make a new assessment of probable cause.
To be entitled to a Franks hearing (which is a precursor to finding an affidavit insufficient to establish probable cause), a defendant must satisfy both an intentionality and a materiality prong. United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990). The Fourth Circuit has noted that “[t]he defendant's burden is a heavy one[.]” United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994). And there is a “strong ‘presumption of validity with respect to the affidavit supporting the search warrant[.]'” Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at 171).
To begin with, a defendant must “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.'” Id. at 300 (quoting Franks, 438 U.S. at 155-56). Allegations of “negligence or innocent mistake” will not do. Franks, 428 U.S. at 171. Similarly, a defendant must establish that the affiant “omit[ted] material facts ‘with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.'” Colkley, 899 F.2d at 300 (quoting United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986)).
The mere fact that an affiant omitted information from an affidavit cannot show recklessness or intentionality. United States v. Shorter, 328 F.3d 167, 171 (4th Cir. 2003). A defendant's allegations related to the intentionality prong “‘must be more than conclusory' and must be accompanied by a detailed offer of proof.” Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at 171). If the defendant cannot submit supporting documentation or statements, the “absence [of these documents should be] satisfactorily explained.” Franks, 438 U.S. at 171.
If the defendant satisfies the intentionality prong, the court's analysis then moves to the materiality prong. Under this prong, a defendant is only entitled to a Franks hearing if he can show that the offending information was “essential to the probable cause determination[.]” Colkley, 899 F.2d at 300. “To determine materiality, a court must ‘excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected' warrant affidavit would establish probable cause.'” Miller v. Prince George's Cty., Md., 475 F.3d 621, 628 (4th Cir. 2007) (quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)).
If the defendant can satisfy both the intentionality and materiality prongs, he is then entitled to a hearing where he can try to establish “an affiant's material perjury or recklessness ... by a preponderance of the evidence[.]” Colkley, 889 F.2d at 300. If he does so, the defendant has a right to have the warrant and evidence obtained through its execution suppressed. Id.
Patterson has not shown that he is entitled to a Franks hearing. The record lacks any information establishing that Condesaavedra knowingly or recklessly omitted information that made the affidavit misleading. And Patterson has not shown that correcting the omissions he noted above would defeat probable cause. As a result, the undersigned recommends that the district court deny Patterson's request for a Franks hearing.
III. Conclusion
For these reasons, the undersigned recommends that the court deny Patterson's motion to suppress. D.E. 43.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party selves it on them. The district judge will review the objection and make then own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.