U.S. v. Gary, No. 06-4597.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: O'Connor
• Citation: 528 F.3d 324
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin L. GARY, a/k/a Melvin Lois Gary, Defendant-Appellant.
• Docket Number: No. 06-4597.
• Decision Date: 16 June 2008

528 F.3d 324 UNITED STATES of America, Plaintiff-Appellee,
v.
Melvin L. GARY, a/k/a Melvin Lois Gary, Defendant-Appellant. No. 06-4597. United States Court of Appeals, Fourth Circuit. Argued: March 18, 2008. Decided: June 16, 2008.

[528 F.3d 325]

ARGUED: Craig Stover Cooley, Richmond, Virginia, for Appellant. Richard Daniel Cooke, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Peter S. Duffey, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.

Before Sandra Day O'CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, WILLIAMS, Chief Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Associate Justice O'CONNOR wrote the opinion, in which Chief Judge WILLIAMS and Senior Judge HAMILTON joined.

OPINION

O'CONNOR, Associate Justice (Retired):

Melvin Gary appeals the district court's decision to allow the government to introduce

528 F.3d 326

evidence obtained from a search of his home pursuant to a warrant. He claims the affidavit underlying that warrant failed to establish probable cause on its face, and that the warrant was void because the affidavit excluded material information. Because the warrant was issued in good faith and the information excluded was not material, we affirm the district court.

I.

Late on the evening of March 25, 2005, Officer Graves of the Richmond Police Department investigated a tip from an unnamed informant. The informant had suggested that an individual named "Melvin" was selling illegal narcotics from 601 Northside Avenue. Graves visited the address in question and noticed that there were several green trash cans in the alley behind the home. Two of those trash cans were directly behind number 601. One can was spray-painted with the number "601"; adjacent to it was a second trash can, which was unmarked.

Graves removed several large, black trash bags from both cans. All the bags he removed were tied in a similar fashion. Graves did not document which bag came from which can. Inside the trash bags, Officer Graves found two plastic bags containing a white powder residue, which he believed to be heroin, squares of foil and plastic bags with the corners removed (materials often used in packaging narcotics), a document addressed to "Tammy Sauls" at 601 Northside Avenue, and dog feces, which he presumed had come from the residence at 601 Northside.

Officer Graves applied for a warrant to search 601 Northside Avenue. Upon execution of the warrant, the officers found a large amount of heroin, scales, packaging materials, and two firearms. Appellant, who was on the property at the time of the search, admitted the items belonged to him and that he was a drug dealer.

Nothing in these facts presents any difficulty. The problem, however, arose when defense counsel examined the affidavit which was submitted to the magistrate. He discovered several omissions and one error. Officer Graves did not disclose that there were two trash cans found behind the house, one of which was unmarked. Instead, he referred to "a green trashcan with the number 601 . . . marked on the side . . . located in the alleyway directly behind 601 Northside Ave." (emphasis added.) Further references to the garbage search discussed "the trashcan."

Nor did he disclose that the document containing the address "601 Northside Avenue" was addressed to "Tammy Sauls," rather than the "Melvin" mentioned by the confidential informant.

The affidavit did not mention that at least three additional trash cans marked with the number 601 were in the alley behind Northside Avenue. These other cans were situated behind other homes along the alley.

Finally, the affidavit erroneously stated that the search took place on March 25, 2004—a year and a day prior to the date Officer Graves requested the warrant— rather than in 2005, when the search actually took place.

On the basis of these errors and omissions, appellant moved to void the warrant and suppress the fruits of the search. After conducting extensive hearings on the matter, the district court denied his motion. He appeals.

II.

Appellant argues that the search warrant for his home should have been voided on two grounds. First, he claims that

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Officer Graves recklessly or purposefully omitted information that was material to the probable cause hearing, and thus, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the warrant must be voided.

Second, appellant claims that the affidavit failed to establish probable cause because it mistakenly identified the date of the search as March 25, 2004, rather than March 25, 2005, and probable cause could not have been found on the basis of such stale evidence. See United States v. Perez, 393 F.3d 457, 463 (4th Cir.2004) (holding that information more than one year old is "stale" and cannot support a finding of probable cause).

We review the district court's factual findings for clear error, and its legal conclusions de novo. United States v. Johnson, 114 F.3d 435, 439 (4th Cir.1997).

A. The Excluded Information

Appellant cites three facts that Officer Graves excluded from his affidavit: Officer Graves failed to state that other trash cans in the alley were also marked 601, he claimed that the trash bags were removed from the trash can marked "601," rather than from two cans, and he omitted that while he found a document addressed to "601 Northside Avenue," the addressee was "Tammy Sauls," rather than "Melvin" as identified by the informant. Appellant claims that under Franks v. Delaware, the warrant must be voided.

Franks held that where an officer makes "a false statement knowingly and intentionally, or with reckless disregard to the truth," and that false statement is necessary to the finding of probable cause, the warrant is void and the fruits of the search must be suppressed. Franks, 438 U.S. at 156, 98 S.Ct. 2674. But while Officer Graves's omissions are troubling, they were not necessary to the finding of probable cause.

Appellant argues that it is possible that another person placed the offending bags in the trash...