U.S. v. Servance

• Decision Date: 12 January 2005
• Docket Number: No. 03-4111.,03-4111.
• Citation: 394 F.3d 222
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Tyrone Melvin SERVANCE, JR., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

394 F.3d 222

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Tyrone Melvin SERVANCE, JR., Defendant-Appellant.

No. 03-4111.

United States Court of Appeals, Fourth Circuit.

Argued: September 30, 2004.

Decided: January 12, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Clarke Francis Ahlers, Columbia, Maryland, for Appellant. Martin Joseph Clarke, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WILLIAMS and Judge TRAXLER joined.

OPINION

KING, Circuit Judge:

Appellant Tyrone Servance seeks reversal of the convictions and sentences imposed on him in the District of Maryland for multiple drug and firearms offenses. Servance contends that the district court erroneously denied his motion to suppress certain evidence — including drugs, ammunition, a bullet-proof vest, and personal papers — seized pursuant to a warranted search. Specifically, he maintains, as he did in the district court, that the state court's issuance of the search warrant failed to comport with the Fourth Amendment's requirement of probable cause. Although not raised below, Servance also contends on appeal that the state judge failed to act in a neutral and detached manner in issuing the warrant, and that the Government failed to comply with its Fifth Amendment disclosure obligations concerning information used to support issuance of the warrant. As explained below, we affirm.

I.

A.

Servance was indicted on June 11, 1998, along with his co-defendant Marc Glover, for multiple offenses, including, as to Servance: conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846; possession with intent to distribute controlled substances, in contravention of 21 U.S.C. § 841(a)(1); carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g). Superseding indictments were returned and filed in late 1998 and again in June of 2002, but they made no substantive changes to the offenses alleged against Servance, recharging him with the same four offenses.

After being first indicted in federal court, Servance sought to suppress the evidence seized by the authorities in their May 1998 warranted search of his Baltimore apartment, on the ground that issuance of the warrant was not supported by probable cause. The search warrant was issued by Judge James Smith of the Circuit Court for Baltimore County a few minutes before midnight on May 7, 1998. The proceedings with respect to the warrant occurred at Judge Smith's residence and lasted over an hour. The warrant was based on the affidavit of Trooper Efrain A. Rosario, a Maryland State Trooper assigned to the FBI's Violent Crime Safe Streets Task Force ("VCSSTF"). The affidavit had been partially prepared earlier that evening by Trooper Rosario, with the assistance of two other VCSSTF agents. Prior to his execution of the affidavit before Judge Smith, Trooper Rosario responded to inquiries and instructions from the Judge, and augmented and corrected his draft document. In summary, the affidavit set forth the following basis for the search warrant:

• Servance had been first observed by the authorities on May 7, 1998, driving a 1995 black Mazda at about 11:50 a.m. Servance and Marc Glover were followed through Baltimore City and County to the Spring Valley Apartments in Cockeysville (Baltimore County), Maryland. They were then observed using a key to enter the apartment building at 1 Meadow Grass Court. The two men remained inside the apartment building for more than three and one-half hours.

• A resident of the apartment building identified a picture of Servance as a resident in Apartment L of the building "since at least December, 1997."

• Police records revealed that Servance's driving license had been suspended by the state and that he had "at least one arrest for drugs" in 1991.

• Shortly before 5:00 p.m., Servance was observed departing the apartment building alone and driving in the black Mazda to a Wendy's Restaurant. Minutes later, "Servance was joined by a female driving a silver vehicle. The female remained in her car as Servance walked over and handed something through the window to her. She, in turn, handed something back to Servance which he placed in his pocket. At approximately 5:39 p.m., the meeting ... concluded, and both drove away in different directions."

• While the Wendy's meeting was taking place, Trooper Rosario contacted a nearby Baltimore Police patrol car and advised the patrol officers that Servance was "a possible drug dealer [and] was driving on a suspended drivers license." Those officers stopped Servance as he drove away from the meeting at the Wendy's parking lot.

• After determining that Servance was in fact driving on a suspended license, a Baltimore police officer arrested him. When Servance was patted down, officers found a semi-automatic pistol concealed on him. The firearm was determined to be stolen.

• Incident to Servance's arrest, the Mazda was searched, suspected cocaine base was discovered inside the vehicle, and more than $2,000 in cash was found on Servance. Based upon Trooper Rosario's experience and expertise, he believed the substance found in the Mazda to be crack cocaine.

• At approximately 5:42 p.m., Glover drove a 1991 Nissan Maxima from the apartment building to a mall parking garage in Towson, Maryland. He entered a department store and had not returned to the vehicle as of 9:15 p.m. However, a woman attempted to gain access to the Nissan and explained to VCSSTF officers that "the owner said he could not drive the vehicle away and she was insuring that it was locked."

• In the opinion of Trooper Rosario, Servance and Glover were operating together, drugs were the object of their association, and Apartment L of the Spring Valley Apartments was the center of their drug activities.

The Rosario affidavit applied for two search warrants, the first for Servance's residence at the Spring Valley Apartments, and the second for the 1991 Nissan Maxima driven by Glover on May 7, 1998. Judge Smith, after questioning Trooper Rosario in the Judge's home, and after assessing the materials related to the warrants being sought, authorized a search of Apartment L at 1 Meadow Grass Court of the Spring Valley Apartments. At the same time, however, he denied Trooper Rosario's request for a search warrant for the Nissan automobile. The handwritten search warrant for the apartment was then issued by the Judge, directing the officers to conduct a search of the premises of Apartment L and to seize evidence relating to drug operations, including controlled substances, firearms, money, and drug paraphernalia. The officers promptly searched Apartment L and recovered, inter alia, large quantities of cocaine and cocaine base, ammunition, a bullet-proof vest, and personal papers relating to Servance and Glover. On January 22, 1999, in response to Servance's Motion to Suppress, the district court conducted an evidentiary hearing. At that hearing, Trooper Rosario testified at some length concerning his affidavit and the circumstances leading to Judge Smith's issuance of the midnight search warrant for Servance's residence.

The district court thereafter declined to suppress the evidence seized from Servance's residence, ruling that the search warrant had been properly issued and agreeing with Judge Smith that the Rosario affidavit presented "adequate probable cause to justify the warrant to search the apartment." On February 9, 1999, the court memorialized its ruling in its Memorandum and Order Regarding Motion to Suppress. United States v. Servance, No. MJG-98-0240 (D.Md. Feb. 9, 1999) (the "Memorandum"). In the Memorandum, the court recited the relevant facts and explained its rejection of Servance's contention that the warrant was constitutionally flawed:

After the warrant for the apartment was [issued] by Judge Smith, the officers searched the apartment. They recovered from various locations within the apartment more than 700 grams of cocaine base, more than 400 grams of cocaine, drug packaging paraphernalia, unspent ammunition of a variety of calibers, a bulletproof vest and personal identification in the names of both Defendants.

...

This Court agrees with Judge Smith that the affidavit presented adequate probable cause to justify the warrant to search the apartment. Even if one were to disagree with Judge Smith's conclusion, the search would nonetheless be lawful despite Defendant's allegations that the warrant application contained defects because it was based upon a facially valid search warrant.

...

In this case, the Defendants have not carried the burden of proof with regard to the recklessness of the affiant. The Defendants have pointed out errors in the affidavit presented to Judge Smith which were neither intentional nor determinative. The affiant erroneously stated that the car occupants had used a key to enter the apartment building. This was of little moment, however, in light of the evidence that Servance had been identified as a resident of Apartment L by a Maryland State Trooper who, by coincidence, was also a resident of the building. The affidavit also misstates the names of the officers — an immaterial matter.

Servance, No. MJG-98-0240, at 7-12.

After the Memorandum was filed in the district court on February 9, 1999, and prior to his trial scheduled for February 17, 1999, Servance jumped bond and became a fugitive. A bench warrant was issued for Servance on February 16, 1999, and the trial proceeded as to Glover only. Over three years later, on May 21, 2002, Servance was apprehended.

On October 21, 2002, Servance entered a...