U.S. v. Brown

• Decision Date: 20 January 2011
• Docket Number: No. 09–3643.,09–3643.
• Citation: 631 F.3d 638
• Court: U.S. Court of Appeals — Third Circuit
• Parties: UNITED STATES of America, Appellantv.Allen BROWN, a/k/a Allan Brown, Appellee.

631 F.3d 638

UNITED STATES of America, Appellant

v.Allen BROWN, a/k/a Allan Brown, Appellee.

No. 09–3643.

United States Court of Appeals, Third Circuit.

Argued June 21, 2010.Filed: Jan. 20, 2011.

Rebecca R. Haywood, Esq. (Argued), Office of the United States Attorney, Pittsburgh, PA, for Appellant.Elisa A. Long, Esq. (Argued), Marketa Sims, Esq., Office of the Federal Public Defender, Pittsburgh, PA, for Appellee.Before: SMITH, FISHER, and COWEN, Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

Defendant Allen Brown stands indicted on charges of bank robbery, 18 U.S.C. § 2113(a), and armed bank robbery, 18 U.S.C. § 2113(d). The District Court granted Brown's motion to suppress a sample of his DNA, on the ground that it had been obtained by way of a materially and recklessly false warrant affidavit, in violation of the Fourth Amendment as interpreted by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The United States appeals. We have jurisdiction, 18 U.S.C. § 3731, and will affirm.

I

On the morning of October 1, 2007, two men wearing distinctive “Scream” masks ¹ robbed an S & T Bank branch in Ford City, Pennsylvania at gunpoint, absconding with more than $24,000. The robbers initially fled the scene on foot, running about 150 yards to the Armstrong County School District Administration Building. There they made off with a school district van that an employee had left with the engine idling.

Thirty minutes after the robbery, police found the van abandoned on Hobson Drive near Route 66, a half-mile from the administration building. Investigators later discovered a Scream mask containing DNA material inside the van. Witnesses reported seeing a silver Volkswagen Jetta driving in the area of Hobson Drive and Route 66 on the morning of the robbery. One witness had seen a silver Jetta parked in the area of Hobson Drive and Route 66 around the time of the robbery. A different witness had seen a silver Jetta driving southbound on Route 66 after the robbery had occurred. Two witnesses described the Jetta as having white license plates; one of them specified that the plates were from Maryland.

One of the bank tellers who had been present during the robbery advised Pennsylvania State Trooper Shane Lash that she and her co-workers had recognized one of the robbers' voices as belonging to John Wingate, one of the bank's regular customers. A Wingate acquaintance informed Lash that Wingate has a nephew who goes by the name “Dink” or “Dinky,” owns a silver Jetta, and visits Ford City frequently. Another acquaintance stated that he had seen “Dink,” Wingate, and a third man together at a Ford City gas station on the Saturday before the robbery. “Dink,” Lash learned, is Allen Brown's nickname.

When Lash eventually contacted Wingate himself, he acknowledged that his nephew lived in Temple Hills, Maryland, and had visited in mid-September 2007, but insisted that the nephew had not been in Ford City on or around October 1. Lash remained suspicious, and asked FBI Special Agent Robert Smith to have his colleagues investigate Brown's Maryland residence. Baltimore-based Special Agent James Mollica interviewed Brown's mother, who stated that her son had been visiting Wingate in Ford City at the end of September, and confirmed that he owned a silver Jetta. Wingate later admitted to Lash that Brown had in fact visited him around the date of the robbery. He further stated that Brown had gone out in his Jetta around 8:00 a.m. on October 1 to buy groceries, and had returned around 10:00 a.m.

At this point the investigation was focused on Brown. Lash and Smith decided to seek a DNA sample in the hope that they could match it to the material found on the Scream mask. This would require a warrant, so Smith requested that an Assistant United States Attorney in Pittsburgh assist him in preparing an application and affidavit. Smith had not participated in interviewing the witnesses who had seen the Jetta, so Lash filled him in via telephone and provided him with the written reports that had been generated during the investigation. Smith did not read any of the written witness statements, and did not review the investigation reports in any detail. Nevertheless, with the AUSA's help, he prepared an affidavit in support of a warrant application.

The affidavit contained only an abbreviated recitation of the known facts of the case. It mentioned the robber's use of a Scream mask; the stolen van and the mask found inside; the fact that Brown had been visiting Ford City around the time of the robbery; and Wingate's statement that Brown had left his home, driving a silver Jetta, at 8:00 and returned at 10:00. Finally, Paragraph 7(c) of the affidavit contained the following averment:

Police interviews of various witnesses following the robbery reported witnessing the stolen Armstrong County School District Administration van meet up with a silver Volkswagen Jetta having a possible Maryland registration. Witnesses then observed the silver Jetta drive away from the area where the van was left parked.

After the AUSA had finished preparing the affidavit, Smith neither checked the affidavit's contents against the investigation reports nor asked Lash to review its accuracy. Smith sent the affidavit off to Mollica, who signed and presented it to a federal magistrate judge as being true and correct to the best of his knowledge. The magistrate issued the warrant, and after obtaining Brown's DNA, investigators matched it to the material that they had found on the Scream mask.

Paragraph 7(c) was false. At the Franks hearing conducted pursuant to Brown's suppression motion, Lash testified that he never told Smith that “various witnesses” had seen the van “meet up” with the Jetta. Nor was there the sort of unbroken chain of observations conveyed by the claim that “[w]itnesses then observed the silver Jetta drive away.” As the District Court wrote in its opinion granting Brown's motion to suppress, Paragraph 7(c) “appears to be crafted to give the U.S. Magistrate Judge the false impression of a continuous sequence of events observed by a number of witnesses.” United States v. Brown, 647 F.Supp.2d 503, 511 (W.D.Pa.2009). The court went on: “Agent Smith ... incorrectly concluded that non-existent evidence actually existed, and, more importantly, took the affirmative step of purposely incorporating the non-existent evidence into the affidavit.” Id. at 513. ² Because the challenged statement had no basis in the evidence, the District Court held that Agent Smith had acted with reckless disregard for the truth. Id. In accordance with Franks, the court proceeded to excise the false statement and reassess the affidavit's contents:

Without [Paragraph 7(c) ], the affidavit is essentially reduced to the following facts: that on the morning of the robbery, Defendant left the residence of John Wingate “at around 8 a.m.” in a silver or gray Volkswagen Jetta, and returned at “10 a.m., or thereabout” with Perry Bell.Id. The absence of any observation of the “meet-up,” the court concluded, “eviscerate[d] probable cause.” Id. Accordingly, the court held that that evidence obtained through the execution of the warrant must be excluded from trial. Id. (citing Franks, 438 U.S. at 155–56, 98 S.Ct. 2674). The government timely appealed, requesting that we overturn the District Court's suppression order.

II

Franks requires suppression of evidence obtained pursuant to a warrant issued on the basis of a false statement that was both material to the finding of probable cause and made either knowingly and intentionally or with reckless disregard for the truth.³ 438 U.S. at 155–56, 98 S.Ct. 2674. The government concedes that Paragraph 7(c) was both false and material,⁴ and Brown likewise concedes that the police did not act knowingly and intentionally. The only question on appeal is whether Smith's conduct evinces a reckless disregard for the truth. The District Court's articulation of the definition of recklessness (What does it mean, in the abstract, to act with reckless disregard for the truth?) is a purely legal question subject to plenary review. See United States v. Shields, 458 F.3d 269, 275–76 (3d Cir.2006). The application of that standard to the facts of a given case (Did the behavior of the officers in this case rise to the level of recklessness?) is a mixed question of law and fact, as to which this Court has not yet articulated the proper standard of review. We now join the unanimous voice of our sister courts of appeals ⁵ in holding that a district court's resolution of the question whether a particular false statement in a warrant affidavit was made with reckless disregard for the truth is subject to reversal only upon a finding of clear error.

In Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the Supreme Court explained that “in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” See also Edwards & Elliott, Federal Standards of Review § I.D. (West 2007). De novo review is favored where there is a need for appellate courts to control and clarify the development of legal principles, and where considered, collective judgment is especially important. Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Edwards & Elliott, supra, at § I.D. By contrast, issues involving assessments of witness credibility and juror bias are wrapped up in evaluations of demeanor that a trial judge is in a better position to decide; appeals courts therefore defer to district court factfinding in the absence of clear error. Miller, 474 U.S. at 114–15, 106 S.Ct. 445.

The Ninth Circuit...