U.S. v. Allen

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: ARGUED:
• Citation: U.S. v. Allen, 631 F.3d 164 (4th Cir. 2011)
• Decision Date: 21 January 2011
• Docket Number: No. 10–4012.,10–4012.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Terrell ALLEN, Defendant–Appellant.

631 F.3d 164

UNITED STATES of America, Plaintiff–Appellee,

v.Terrell ALLEN, Defendant–Appellant.

No. 10–4012.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2010.Decided: Jan. 21, 2011.

ARGUED: Gerald Chester Ruter, Towson, Maryland, for Appellant. Philip S. Jackson, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.Before KING and DUNCAN, Circuit Judges, and BOBBY R. BALDOCK, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.Affirmed by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN and Senior Judge BALDOCK joined.

OPINION

KING, Circuit Judge:

Defendant Terrell Allen appeals from his conviction in the District of Maryland for contravening 18 U.S.C. § 922(g)(1) by knowingly possessing ammunition after having been convicted of a felony. On appeal, Allen maintains that evidence used against him should have been suppressed and that he was erroneously denied a Franks hearing concerning a search warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (holding that, in limited circumstances, accused is entitled to evidentiary hearing on veracity of search warrant affidavit). After the district court declined to suppress the evidence and denied his request for a Franks hearing, Allen entered a conditional guilty plea to a single § 922(g)(1) offense, reserving his right to appeal the court's adverse suppression rulings. As explained below, we affirm.

I.

A.

On July 9, 2008, a grand jury in the District of Maryland returned a single count indictment against Allen, charging that he had contravened 18 U.S.C. § 922(g)(1) by knowingly possessing a .44 caliber revolver after having been convicted of a felony (the “Firearm Offense”). A superseding indictment was returned on February 17, 2009, containing a second § 922(g)(1) count that charged Allen with knowingly possessing ammunition after having been convicted of a felony (the “Ammunition Offense”). The revolver underlying the Firearm Offense was seized on May 15, 2008, during a warranted search of the Allen Family Appliance Store (the “AFA Store,” or the “Store”) located on North Gay Street in Baltimore, Maryland. The ammunition underlying the Ammunition Offense was seized two months later, during a warranted search of Allen's residence on Punjab Circle in Baltimore County.

Allen filed pretrial motions seeking suppression of the evidence underlying both counts of the superseding indictment, and also requesting that the district court conduct a Franks hearing on the veracity of information contained in the search warrant affidavit leading to the seizure of the revolver. After the court denied his suppression motions, Allen entered a conditional guilty plea—reserving his right to appeal the court's adverse suppression rulings.

B.

The events leading to the warranted seizures of the .44 revolver and the ammunition serve as the factual predicate of this appeal and are not in dispute. At approximately 6:00 p.m. on May 15, 2008, Baltimore police officers responded to calls relating to multiple shootings in the street outside the AFA Store, which was owned and operated by Allen and his family. Allen, along with his father, his half-brother, and a man named Reginald Davis, were apparently attending a barbeque outside the Store when the shootings occurred; all four were shot and taken to nearby hospitals. Allen and Davis survived, but Allen's father and half-brother died.

“Shooting detectives” of the Baltimore Police Department were the first officers to respond to the firefight near the AFA Store.¹ It was apparent to the shooting detectives that some of the victims would not survive, and they immediately requested the assistance of the homicide unit, which in turn dispatched “homicide detective” Gary Niedermeier to the scene. Niedermeier arrived at the chaotic scene outside the Store approximately twenty minutes after the homicide unit was called.

At the crime scene, Detective Niedermeier observed approximately twenty spent shell casings and fragments that were strewn about the area, indicating that multiple firearms had been discharged in the firefight. Niedermeier also observed several blood trails, one of which led directly into the AFA Store. He followed the blood trail inside the Store, which led to a filing cabinet. One of the cabinet's drawers was slightly ajar, and Niedermeier opened it and observed a silver revolver. He promptly relayed this information to the shooting detectives at the scene.

In the aftermath of these events, the Baltimore and federal authorities sought and obtained three separate search warrants: (1) the first warrant, issued on the evening of the fire-fight, authorized a search of the AFA Store for firearms and other evidence (the “First Warrant”); (2) the second warrant, issued on June 3, 2008, authorized the collection of Allen's DNA (the “Second Warrant”); and (3) the third warrant, issued on June 30, 2008, authorized the search of Allen's residence for firearms and other evidence (the “Third Warrant”). The .44 revolver underlying the Firearm Offense was seized during the search of the Store pursuant to the First Warrant, and the ammunition underlying the Ammunition Offense was recovered during the search of Allen's residence pursuant to the Third Warrant. The events surrounding the acquisition and execution of the three warrants is essential to a proper understanding of this appeal.

1.

On May 15, 2008, the date of the firefight, Baltimore Detective Chris Wade sought and obtained the First Warrant from a state court judge. The First Warrant authorized the search of the AFA Store for firearms, DNA, and other evidence related to the shootings that occurred outside the Store. Wade had not personally been to the crime scene, and much of the information included in his affidavit had been relayed from officers on the scene. Wade's affidavit accurately described the multiple victims, the many shell casings, and various other aspects of the crime scene outside the Store. The affidavit also related the following:

A blood trail was located going inside [the AFA Store] on the first floor and going up the steps to the second floor. On the first floor to the right of the blood trail laying in plain view on top of a file cabinet was a ... handgun.

J.A. 36.² Based on Wade's affidavit, the First Warrant was issued and the search was executed at the Store on the evening of May 15, 2008, less than five hours after the firefight. During the search, the officers seized the .44 revolver from the filing cabinet, plus DNA samples.

2.

Three weeks later, on June 3, 2008, Detective Niedermeier sought and obtained the Second Warrant, also from a state court judge, authorizing the seizure of DNA samples from Allen. The affidavit supporting the Second Warrant detailed the chaotic scene outside the AFA Store following the shootings, and explained that the .44 revolver and DNA samples had been seized during the warranted search of the Store. The affidavit specified that Niedermeier had observed a silver revolver in a filing cabinet at the Store before the revolver was seized:

[Y]our affiant located a blood trail which led from the initial scene into [the Store]. As your affiant followed the blood trail[,] it led to a four drawer filing cabinet ... with the second drawer from the top slightly open. [Y]our affiant opened the drawer and observed a silver revolver....

J.A. 60. The Second Warrant was executed on June 5, 2008, and Allen's DNA was obtained. His DNA matched that found on the revolver seized from the Store and, as a result, Allen was charged with the Firearm Offense.

3.

On June 30, 2008, ATF Agent Noah Slackman sought and obtained the Third Warrant, from a federal magistrate judge, authorizing the search of Allen's residence for firearms and related paraphernalia. Slackman's affidavit specified that the home on Punjab Circle in Baltimore County was Allen's residence, detailed Allen's prior felony convictions, recounted the May 15, 2008 crime scene (similar to the details in Niedermeier's affidavit supporting the Second Warrant), and indicated that the DNA samples found on the .44 revolver matched Allen's DNA. The principal basis for the search of Allen's residence, however, was information provided by a confidential informant (the “CI”).³ According to the CI, the May 15, 2008 shootings had been committed by a gang of Allen's drug distribution rivals, in retaliation for a kidnapping orchestrated by Allen. The CI also explained that Allen had “made statements that he intended to commit acts of violence toward anybody related to [his rivals who committed the May 15 shootings], and in that regard members of [Allen's] gang have been and will be armed with weapons for that purpose.” J.A. 72.

The federal magistrate judge issued the Third Warrant on June 30, 2008, and it was executed on July 1, 2008. A box of ammunition was seized from the Punjab Circle residence during the search, and, as a result, Allen was charged with the Ammunition Offense.

C.

1.

In pretrial proceedings in the district court, Allen sought suppression of the evidence seized pursuant to the three search warrants. In regard to the .44 revolver and DNA recovered from the AFA Store, Allen maintained that Detective Niedermeier's opening of the cabinet drawer constituted an unconstitutional search not justified by any exception to the Fourth Amendment's warrant requirement, and that Niedermeier's observation of the silver revolver in the drawer prompted the decision of the authorities to seek the First Warrant. Thus, Allen asserted that the revolver and DNA (seized pursuant to the First Warrant), as well as Allen's DNA (obtained pursuant to the Second Warrant), should be suppressed. Additionally, Allen maintained that the conflicts between Detective...