U.S. v. Colkley

• Citation: 899 F.2d 297
• Decision Date: 27 March 1990
• Docket Number: 89-5051,Nos. 89-5050,s. 89-5050
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Edward COLKLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jamison Henry JOHNSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 297

899 F.2d 297

UNITED STATES of America, Plaintiff-Appellee, v. James Edward COLKLEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jamison Henry JOHNSON, Defendant-Appellant.

Nos. 89-5050, 89-5051.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 8, 1989.

Decided March 27, 1990.

Beth Mina Farber (argued), Asst. Federal Public Defender, Baltimore, Md., for defendants-appellants.

Geoffrey R. Garinther (argued), Asst. U.S. Atty., Baltimore, Md., for plaintiff-appellee.

Fred Warren Bennett, Federal Public Defender, Larry A. Nathans, Asst. Federal Public Defender, Harold I. Glaser, Baltimore, Md., on brief, for defendants-appellants.

Breckinridge L. Willcox, U.S. Atty., Gregg L. Bernstein, Asst. U.S. Atty., Baltimore, Md., on brief, for plaintiff-appellee.

Before WIDENER and WILKINSON, Circuit Judges, and SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

James Edward Colkley and Jamison Henry Johnson appeal their convictions for bank robbery, 18 U.S.C. Sec. 2113(a), bank larceny, 18 U.S.C. Sec. 2113(b), and assault during a bank robbery, 18 U.S.C. Sec. 2113(d). Johnson contends that the district court should have suppressed incriminating post-arrest statements made by him because the affidavit submitted in support of the warrant for his arrest did not contain certain potentially exculpatory information known to the affiant. In addition, both appellants maintain that the trial judge improperly excused a jury member during trial and impermissibly admitted certain evidence.

We hold that the Johnson affidavit was not tainted by the affiant's failure to include within it all potentially exculpatory information. Johnson's incriminating statements were properly admitted because Johnson made no showing that the affiant intended to mislead the magistrate by omitting information, and because the warrant with the omitted information would in any event have been supported by probable cause under the "totality of the circumstances" test articulated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Finding no merit in appellants' remaining claims, we affirm the judgment of the district court.

I.

On May 5, 1988, two armed men robbed the Baltimore Federal Financial Bank in Pikesville, Maryland. One of the robbers held up the lobby tellers, while the other robber took money from the bank vault. Bank officials reported to police authorities that the robbers stole $71,442, and that their take also included 32 twenty-dollar bait bills and several malfunctioning dye packs.

Based on bank surveillance photographs and interviews with eyewitnesses, the F.B.I. developed composite descriptions of the two robbers. Appellant Colkley became a suspect based on one of the composite descriptions and his past bank robbery activity.

On May 23, an anonymous informant telephoned the F.B.I. to report that appellants Johnson and Colkley had told him that they recently robbed a bank in Baltimore County. The informant's account of this robbery was remarkably consistent with the robbery at Baltimore Federal Financial. The informant stated that Johnson stole money from the vault while Colkley held up the lobby tellers. He also said that the robbers had taken a dye pack that failed to operate. Finally, the informant reported that a reliable associate had seen over $60,000 in Johnson's house during May 1988.

Based on this information, agents began surveillance of Johnson's home in June 1988. They observed two cars parked outside Johnson's home which they determined belonged to Johnson's brother and Colkley. An investigation revealed that Colkley purchased his car the day after the bank robbery for $4,780 in cash which he had removed from a brown envelope containing more cash. The agents also learned that Johnson's brother, accompanied by Johnson had purchased a car four days after the robbery for $2,551.50 in cash. In addition, on June 14 an agent conducting surveillance observed Johnson purchase a van for $3,100 in cash. An examination of the cash used in this purchase disclosed one of the bait bills taken in the robbery.

In the meantime, investigators prepared two identification photospreads containing six pictures each. Colkley's photograph was in one photospread, Johnson's in the other. Two eyewitnesses positively identified Colkley as the lobby robber, and two others said he "looked similar" to the lobby robber. None of the six eyewitnesses were able to identify Johnson, however; three identified other individuals in the Johnson photospread as similar to the vault robber, and three could identify no one.

On June 23, 1988, a United States Magistrate issued separate warrants for the arrest of Colkley and Johnson. The warrant applications were accompanied by affidavits executed by Special Agent Thomas Moore of the F.B.I. Both affidavits contained eyewitness descriptions of the robbery, composite descriptions of the two suspects, an account of the surveillance of Johnson's home and the information gained by investigating the automobile purchases, and a summary of the photospread identifications of Colkley. In addition, the Johnson affidavit included information learned from the anonymous informant. The Johnson affidavit did not recount that the eyewitnesses failed to identify Johnson in the photospread.

Colkley and Johnson were arrested separately. Police arrested Colkley in the car he purchased the day after the robbery. An inventory search of the car revealed two handguns which were later introduced at trial. Johnson was arrested at his residence. After initially disavowing knowledge of the bank robbery, he made numerous incriminating statements concerning his involvement in it. In response to an agent's question about the location of the robbery money, he replied "I had my fun, I am broke." Confronted with evidence of the bait bill discovered during his purchase of the van, he stated, "the van got me." Finally, he told an agent, "when I get out of jail I would have learned, and I won't make the same mistake again." A subsequent search of Johnson's home revealed a .38 caliber bullet that was admitted at trial.

Prior to trial, Johnson challenged the affidavit used in support of his arrest warrant. He claimed that the affidavit was defective because it failed to note that numerous witnesses did not identify him in a photographic spread, and because agent Moore based the composite height description of the vault robber--allegedly Johnson--on the testimony of only one witness and in disregard of the testimony of other witnesses who claimed that the vault robber was shorter. Based on these allegations, Johnson requested and received an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to determine if agent Moore had deliberately or with reckless disregard for the truth excluded material information. After the Franks hearing, the district court ruled that even with the inclusion of the omitted information on the Johnson photographic spread, probable cause existed for the issuance of the arrest warrant. The court also found that agent Moore had not intentionally misrepresented Johnson's height and that, in any event, discrepancies in height descriptions were common and in this case were immaterial.

On November 16, 1988, a jury returned guilty verdicts against both Colkley and Johnson for bank robbery, bank larceny, and assault during a bank robbery. 18 U.S.C. Sec. 2113(a), (b), & (d).

Colkley and Johnson appeal their convictions.

II.

We first address the district court's refusal to exclude Johnson's incriminating post-arrest statements. We agree with the district court that the omitted information in the affidavit did not require suppression of these statements. We reach this conclusion by different means, however, and hold that the district court need not have held a Franks hearing on the integrity of the affidavit because there was no substantial preliminary showing that the affiant intended to mislead the magistrate, and because inclusion of the omitted information would not have defeated probable cause in any event.

A.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain narrowly defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a strong "presumption of validity with respect to the affidavit supporting the search warrant," 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of "limited scope," id. at 167, 98 S.Ct. at 2682. The rule requires that a dual showing be made which incorporates both a subjective and an objective threshold component. In order even to obtain an evidentiary hearing on the affidavit's integrity, a defendant must 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." Id. at 155-56, 98 S.Ct. at 2676-77. This showing "must be more than conclusory" and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684. In addition, the false information must be essential to the probable cause determination: "if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Id. at 171-72, 98 S.Ct. at 2684-85. The Franks test also applies when affiants omit material facts "with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading." United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986).

If a Franks hearing is appropriate and an affiant's material perjury or recklessness is established by a preponderance of the evidence, the warrant "must be...