U.S. v. Gary

Decision Date15 March 2006
Docket NumberNo. CRIM. 3:05CR378.,CRIM. 3:05CR378.
Citation420 F.Supp.2d 470
PartiesUNITED STATES of America v. Melvin L. GARY, Jr.
CourtU.S. District Court — Eastern District of Virginia

S. David Schiller, Esquire, Assistant United States Attorney, United States Attorney's Office, Richmond, for United States.

Craig S. Cooley, Richmond, VA, for Defendant.

MEMORANDUM OPINION

PAYNE, District Judge.

This matter is before the Court on the Defendant's MOTION TO SUPPRESS (Docket No. 10) items seized and statements made following a search of the defendant's home that was conducted pursuant to a search warrant. The Defendant, Melvin L. Gary, Jr., argues that the affidavit supporting the search warrant application did not establish probable cause for issuance of a warrant and that, therefore, the search violates the Fourth Amendment. The United States argues that the affidavit established probable cause and that, even if it did not, the search was valid under the so called "good-faith" exception to the exclusionary rule that the Supreme Court formulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For the reasons set forth below, the motion to suppress will be denied, notwithstanding that the affidavit did not establish probable cause for issuance of the warrant, and that, therefore, the warrant was invalid.

STATEMENT OF FACTS

On March 26, 2005, Officer Wayne B. Graves of the Richmond Police Department, presented to a state magistrate an affidavit for a search warrant to search the dwelling and curtilage of 601 Northside Avenue, Richmond, Virginia, which, at the time, was Gary's residence. The affidavit specified in constitutionally sufficient detail the place to be searched and the items to be searched for and seized. In the space provided in the affidavit for "Material Facts Constituting Probable Cause That the Search Should Be Made," Graves wrote "SEE ATTACHED," a reference to an attached single page that set forth the facts offered by Graves as probable cause for the requested search warrant.

That affidavit read in pertinent part:

Your affiant received information regarding possible illegal narcotics activity occurring at 601 Northside Avenue. Information was also provided to your affiant that a suspect known as "Melvin", described as a short black male, approximately in his 30s, 5'9" approx. 180 lbs. was selling large amounts of heroin from 601 Northside Avenue. On March 25, 2004, at approx 2300 hours this affiant responded to 600 block of Northside Avenue where a green trashcan with the number 601 was marked on the side was located in the alleyway directly behind 601 Northside Ave. The trashcan located by your affiant was searched and found that it contained a document bearing the address of 601 Northside Avenue. Richmond Virginia 23222. Also located and recovered in the trash can were items apparently used in the packaging of illegal narcotics such as plastic bags, one plastic bag with white powder substance coated inside and another plastic bag with a green plant material inside the plastic bag and foil cut into square pieces. These items were located in black plastic bags that cinched up inside the trashcan.

Def.'s Ex. 9. (emphasis added).

The affidavit also stated that, based on a decade of training and experience in narcotics investigation, Graves knew that people who are trafficking illegal narcotics often package the narcotics in clear plastic sandwich bag corners and in square pieces of metallic foil, and that drug dealers discard the remnants of this packaging—including bags with the residue of cocaine and marijuana—in the trash. Also, based on Graves' ten years of experience in narcotics police work, Graves averred that he "believe[d] that the trashcan [sic] searched is the trashcan utilized by residents at 601 Northside Avenue, ... [and] that illegal drug activity is occurring inside 601 Northside Avenue."1 Graves delivered the affidavit (which in Virginia is also the application for a search warrant) and the attachment to the magistrate on March 26, 2005.

After reviewing these submissions, the magistrate prepared and issued the warrant at 6:05 PM that day. After searching 601 Northside Avenue shortly thereafter, the police seized a large amount of heroin, two firearms, scales, packaging materials, and $5,261.00 in United States currency. During the search, the police arrested Gary and advised him of the rights specified by Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969). Gary subsequently admitted that the seized property was his and that he was a drug dealer.

Gary was indicted for possession with intent to distribute heroin, possession of a firearm in furtherance of a drug trafficking crime, and possession of firearm by a convicted felon. After entering a plea of not guilty, Gary filed this motion to suppress the seized evidence contending that: (1) several crucial facts were omitted from the affidavit which, if they had been included, would have shown that probable cause was lacking; and (2) in any event, the affidavit did not establish probable cause. Gary also seeks suppression of the post-arrest statements, presumably on the theory that they are the fruits of the unlawful search. After a proffer by the Defendant and argument by both parties, a hearing was held pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

During the hearing, it was established that the time reference in the affidavit was in error and that, in fact, the search of the trash can took place at 11:00 PM, March 25, 2005, not on March 25, 2004, as set forth in the affidavit. Defense counsel agreed that the date was a typographical error, but argued that there was no evidence that the magistrate had read the date in the affidavit in any way other than literally; that is, as March 25, 2004.2 However, at a hearing on this motion, the issuing magistrate testified that he read the date to be March 25, 2005 and that he would not have issued the warrant if he had thought that the date was March 25, 2004. The United States has stipulated that no information other than the supporting affidavit was provided to the magistrate to support probable cause.

Testimony also revealed the following facts, which were neither made known to the magistrate by Graves nor included in the affidavit:

(1) Graves had searched two trash cans, not one, both of which were located directly behind 601 Northside Avenue (one of which was marked "601" and one which was unmarked) (2) The plastic bag containing white powder residue and green plant residue came from trash bags located in the trash can marked "601;"

(3) The pieces of foil and plastic bags with their corners torn off came from bags located in the unmarked can;

(4) The document bearing the address "601 Northside Avenue" bore the name "Tammy Sauls," and not "Melvin" or "Melvin Gary" and that document was found in a trash bag in the trash can marked "601;"

(5) There were at least four trash cans marked "601" in the alley behind the 600 block of Northside Avenue (only one of which was directly behind 601 Northside Avenue);3 and

(6) Graves put the trash bags in the squad car in two trips, did not label which can they had come from, and took them to another location to be searched.

Gary argues that these omissions were made, at a minimum, with reckless disregard for the truth, and that the omitted information, if included in the affidavit, would defeat the magistrate's finding of probable cause.

Gary also asserts that: because the only date in the affidavit states that the trash can search occurred a year and a day before the application for the warrant, the evidence obtained from the trash can search was stale; the stale evidence has no probative force of its own; and the stale evidence does not corroborate the anonymous tips described in the affidavit. Consequently, says Gary, the affidavit is simply a "bare bones" affidavit that does not establish probable cause and that cannot be saved under the good-faith rule of Leon. See United States v. Lowry, 985 F.2d 1293, 1311 n. 23 (5th Cir.1993) cited in United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir.1996) (defining "bare bones" affidavit as "one that contains wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause" (internal quotations omitted) and holding that Leon's good-faith rule does not save warrants supported by bare bones affidavits).

The United States contends that the erroneous date is merely a typographical error that should not be considered for what it actually recites: a search of the trash can a year and a day before the warrant was issued. The United States makes the corollary argument that the affidavit establishes probable cause if the actual date of the search is used to analyze that issue. The United States contends that, even with the date error in the affidavit, the evidence should not be suppressed.

DISCUSSION

The Fourth Amendment guarantees "[t]he right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause . ..." U.S. CONST. amend. IV. Except in limited circumstances not at issue here, a search of a house may be made only if authorized by a search warrant issued on a showing of probable cause. United States v. DeQuasie, 373 F.3d 509, 518 (4th Cir.2004) (citing Camara v. Municipal Court of San Francisco, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). Probable cause exists where, looking at the totality of the circumstances, "a man of reasonable prudence," Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), would believe that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct....

To continue reading

Request your trial
12 cases
  • United States v. Chatrie
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 3 Marzo 2022
    ...himself with the police. Consequently, ... the second [Leon exception] does not bar application of the good-faith exception." Gary, 420 F.Supp.2d at 487. Chatrie further that "[t]he magistrate's utter lack of concern regarding the obvious flaws in the warrant constituted a complete abandonm......
  • Commonwealth v. Henry
    • United States
    • Virginia Court of Appeals
    • 11 Marzo 2014
    ...are two keyfactors in determining whether, under the totality of the circumstances, probable cause exists." United States v. Gary, 420 F. Supp. 2d 470, 478 (E.D. Va. 2006) (citing United States v. Wilhelm, 80 F.3d 116, 119 (4th Cir. 1996)). "'In evaluating whether an informant's tip establi......
  • United States v. Campbell
    • United States
    • U.S. District Court — Western District of Virginia
    • 22 Febrero 2016
    ...Lovell's estimate—does not show that the magistrate "wholly abandoned" his role as a judicial officer. See United States v. Gary, 420 F. Supp. 2d 470, 486 (E.D. Va. 2006), aff'd, 528 F.3d 324 (4th Cir. 2008) (noting that the second Leon exclusion cannot apply "[w]here the magistrate takes t......
  • United States v. Rice
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • 2 Abril 2019
    ...noted: "Police officers, like magistrates, lawyers, and judges make honest proof-reading errors from time to time." United States v. Gary, 420 F.Supp.2d 470 (E.D. Va. 2006). The purpose of the exclusionary rule to deter police misconduct "is not served by suppressing evidence obtained pursu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT