U.S. v. Clenney

• Decision Date: 03 February 2011
• Docket Number: No. 09–5114.,09–5114.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.David Thomas CLENNEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

631 F.3d 658

UNITED STATES of America, Plaintiff–Appellee,

v.David Thomas CLENNEY, Defendant–Appellant.

No. 09–5114.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2010.Decided: Feb. 3, 2011.

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant. Lisa Owings, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Heather Golias, Law Offices of Marvin D. Miller, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge SHEDD and Judge DUNCAN joined.

OPINION

WILKINSON, Circuit Judge:

David Clenney appeals his conviction for possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Finding no merit in his various contentions, we affirm the judgment of the district court.

I.

On March 12, 2009, David Clenney was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The charge resulted from a firearm found in Clenney's residence on January 30, 2009. Clenney filed a motion to suppress the firearm. At the outset of the suppression hearing, the district court noted that Clenney was seeking to adduce evidence that would show that the arrest and search warrant applications included false statements or material omissions that would defeat probable cause. Initially, the district court told Clenney that he could not present such evidence because he had not met the burden that would entitle him to a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). But the district court reversed course later in the day and allowed Clenney to present the evidence, granting him a Franks hearing “as a matter of grace and out of an abundance of caution.”

A.

The evidence presented at the hearing revealed the following facts. On the morning of January 30, 2009, one Jaclyn Doherty told Detective Michael Fernald of the Prince William County Police Department that an unknown man called her and claimed that he had her 2007 tax records. The caller told Doherty that “he wanted to help everyone out by making some money for himself” and also by getting drug money for Gary Booher, the son of Doherty's tax preparer, Patricia Booher, and the man from whom the caller claimed to have obtained the records. The caller explained that Gary Booher's brother, Blair Booher, had frequently stolen tax records of his mother's clients and then used the records to procure drug money. And now Gary Booher was following in his brother's footsteps.

The caller also warned Doherty that he used to be an FBI informant and knew that the police could not help her. The caller refused to give Doherty his name, refused to meet with her, and refused to provide her with her original tax returns, offering instead only a copy. When Doherty asked the caller to prove that he had her tax records, he did so by reading her personal identifying information. But when the caller read the line from her tax form stating that Doherty was employed by Prince William County, he became noticeably nervous and abruptly hung up the phone.

Doherty also explained that earlier that same day, her mother, Carolyn Hawkins, had received a call from an unknown person who told her that he obtained her tax records from her tax preparer, Patricia Booher, and that he was interested in returning them to her. The caller did not ask for money. Doherty stated that Hawkins “felt very comfortable when she got off the phone with him, but she was a little uneasy at why he called in the first place.”

At this point, Detective Fernald asked Doherty to make a recorded phone call to the number from which the caller had called, which was listed on Doherty's phone. During this recorded call, the caller refused Doherty's offer of money in exchange for the records. But Doherty recognized a marked change in the caller's demeanor, from threatening in the first call to conciliatory in the second.

Fernald continued his investigation and called the phone number again, reaching the voicemail for a company called AMC Design 6. Doherty indicated that the voice on the voice-mail matched the voice of the man who had called her. Fernald confirmed through phone records that this phone number was the source of outgoing calls to Hawkins and Doherty. He connected AMC Design 6 with an address on Wembley Central Terrace in Loudoun County, Virginia, and he learned that Clenney lived at that address.

After these steps in the investigation, Fernald obtained an arrest warrant charging Clenney with attempted extortion. Along with other officers, he arrested Clenney at his home at approximately 6:00 p.m. Fernald read Clenney his Miranda rights, which he waived, and Clenney suggested that they talk in the living room. When Fernald entered the living room, he noticed a Boost Mobile phone, which, according to the phone records, was the make of the phone belonging to the phone number from which the call to Doherty had originated. Fernald then interviewed Clenney. Clenney admitted that he had called Doherty and Hawkins that morning, and he further explained that he had Doherty's tax records in his basement.

After Clenney withheld consent to search the home, Fernald left to obtain a search warrant. Several officers remained behind with Clenney. The search warrant application was supported by Fernald's affidavit, which included many of the facts he had learned during the course of his investigation. At approximately 8:05 p.m., the magistrate issued the warrant, and Fernald notified the officers who had remained at the home that they could begin the search. During the search, the officers found a Crown Royal bag in the back of the closet. An officer opened the bag and discovered a firearm, which was seized because the officers knew Clenney was legally prohibited from having a firearm.

At approximately 8:45 p.m., while the search was ongoing, Fernald returned to the home. He turned on the Boost Mobile phone he had seen earlier and, using his own phone, called the number from which the call to Doherty had originated. The Boost Mobile phone began to ring, confirming his suspicion that the Doherty call had been made from that phone. Fernald also asked Clenney about the firearm the other officers had found, and Clenney admitted that it was his. The officers then brought Clenney before a magistrate in Prince William County at approximately 11:30 p.m.

B.

Following the suppression hearing, the district court denied Clenney's motion to suppress. Clenney later entered a conditional guilty plea to the indictment. The plea agreement permitted him to appeal the court's adverse determinations concerning the motion to suppress. Clenney now appeals these rulings.

II.

Clenney argues that the arrest and search warrants were invalid under Franks because the warrant applications contained false statements and material omissions. But Clenney is wrong on both counts. Detective Fernald made no false statements in the warrant applications. And the facts Fernald omitted were not material; their inclusion would not have defeated probable cause.

A.

In Franks, the Supreme Court delineated the limited circumstances in which a defendant can attack a facially sufficient warrant affidavit. 438 U.S. at 155–56, 98 S.Ct. 2674. The Court set forth a two-step process for defendants seeking to challenge such affidavits. Id. First, a defendant must make the rigorous showing necessary to obtain a hearing:

[W]here the defendant makes 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, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. This showing “must be more than conclusory” and should include affidavits or other evidence to overcome the “presumption of [the warrant's] validity.” Id. at 171, 98 S.Ct. 2674. Second, a defendant faces additional burdens at the hearing stage:

In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 156, 98 S.Ct. 2674.

Clenney claims that Fernald made two false statements in his warrant applications. First, in both the arrest and search warrant affidavits Fernald stated that the caller had asked for money in exchange for the tax records. Second, in the search warrant application Fernald checked the box indicating that he had personal knowledge of the facts in the affidavit. While Clenney is correct that Fernald made these two statements, neither of them is false.

As for Fernald's statements that the caller sought money, this was a sound conclusion in light of the facts. In particular, Fernald relied upon what Doherty told him, and that reliance was altogether reasonable. During the initial interview, Doherty informed Fernald of the following situation. An unknown man had called her, refused to give his name, and informed her that he had procured her tax records from Gary Booher, the son of her tax preparer. He then explained he wanted to “help everyone out,” help that presumably involved obtaining money both for himself and for Booher. The caller told Doherty that Gary Booher's brother had supported his drug habit by profiting off of tax records of his mother's clients, and now Gary was doing the same. The unknown caller then made a none too subtle threat, expressing his desire to make sure Doherty's...