U.S. v. Tate
| Decision Date | 06 May 2008 |
| Docket Number | No. 07-4026.,07-4026. |
| Citation | 524 F.3d 449 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Davon TATE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Martin Gregory Bahl, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Debra L. Dwyer, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Joseph L. Evans, Assistant Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.
This appeal raises the question of whether Davon Tate made the "substantial preliminary showing" under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that is required for him to be entitled to an evidentiary hearing challenging the integrity of an affidavit submitted to support the issuance of a search warrant for his residence.
applied for and obtained a warrant to search Tate's residence for drugs and related items based on Agent Manners' prior investigation of Tate's trash. Upon executing the warrant, police officers recovered a firearm from Tate's bedroom, and Tate was charged with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g). Tate pleaded guilty to the charge, and the district court sentenced him to 78-months' imprisonment. As a part of his plea, Tate reserved his right to appeal the district court's denial of his motion to suppress and to have a Franks hearing challenging Agent Manners' affidavit in support of the search warrant.
In his motion, Tate asserted that Agent Manners wrote his affidavit in support of the search warrant with the purpose of intentionally misleading the state judge who issued the warrant, by deliberately omitting facts about the location of the trash that Agent Manners searched. Tate claimed that his trash had not been abandoned and that Agent Manners' investigation must have been conducted within Tate's fenced backyard in an unconstitutional manner. The district court denied Tate's request for a Franks hearing and his motion to suppress, on the ground that even if facts were omitted, Agent Manners' affirmative statements in the affidavit were "literally true."
Because we conclude that Tate made the "substantial preliminary showing" required by Franks, we vacate the judgment and remand to the district court for a Franks hearing.
On December 16, 2005, Agent Charles Manners of the Baltimore City Police Department applied for and obtained a search warrant for Tate's residence at 709 North Longwood Street in Baltimore, Maryland. The warrant authorized a search for and seizure of drugs and related paraphernalia, as well as guns and other specified items.
To obtain the search warrant, Agent Manners submitted an affidavit to a Baltimore City Circuit Court judge, which contained three substantive sections. First, the affidavit contained a short description of Agent Manners' general knowledge of drug activity in the 700 block of North Longwood Street and at Tate's residence in particular. Second, it recited the results of a criminal records check on Tate, which revealed numerous past drug and other criminal incidents in which Tate had been involved. And third—the portion that is at issue in this case—it described a trash investigation that Agent Manners conducted at Tate's residence the day before. On this subject, the affidavit stated in full:
On December 15, 2005, your affiant conducted a trash investigation from 709 North Longwood Street. During the trash investigation, your affiant retrieved (2) two black trash bags, which were easily accessible from the rear yard of 709 North Longwood Street. Recovered from one trash bag was (7) seven zip lock bags containing plant residue suspected marijuana and a piece of printed mail listing 709 North Longwood Street as the address of residence. Furthermore, located in the trash bag were cigar tobacco and hollowed out cigar shells. Your affiant [through] training and experience knows that marijuana users often hollow out cigar shells, discard the cigar tobacco and fill the cigar shell with marijuana, a controlled dangerous substance of a schedule I category.
(Emphasis added). Based on Agent Manners' affidavit, the state judge issued the search warrant for Tate's residence.
When the search warrant was executed on December 20, 2005, police officers recovered a firearm from Tate's bedroom, which formed the basis for the charges in this case.
After Tate was indicted, he filed a motion to suppress the evidence obtained pursuant to the search, particularly the firearm recovered from his bedroom, but also statements that he made to officers who had executed the search warrant, challenging in particular the affidavit submitted to procure the search warrant. Tate argued that the portion of the affidavit regarding the investigation of Tate's trash was constructed intentionally to mislead the state judge into assuming that the trash investigation had been conducted legally, even though, as Tate alleges, the trash bags had been taken by means of a trespass into Tate's fenced backyard, resulting in an unconstitutional search. Tate asserted in particular that Agent Manners' statement that the trash bags were "easily accessible from the rear yard" was misleading because it was intentionally designed to hide from the judge the fact that the officer had obtained the trash bags by trespassing onto Tate's property and that the trash bags had not been abandoned for trash pick-up, as required for a trash search to be constitutional. See California v. Greenwood, 486 U.S. 35, 40-42, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) ().
To support his request for an evidentiary hearing under Franks v. Delaware on his motion to suppress, Tate proffered the following facts to the district court.
First, he submitted a letter from the Division Chief of the Baltimore Department of Public Works' Bureau of Solid Waste, indicating that during the relevant time, trash collection for 709 North Long-wood Street occurred on Wednesdays and Saturdays. The date Agent Manners searched Tate's trash, December 15, 2005, was a Thursday, two days before the next pick-up.
Second, he submitted the affidavit of Dominic Gaymon, who lived with Tate and his mother at 709 North Longwood Street during the relevant period. Gaymon corroborated the assertion that Thursday, the day of Agent Manners' search, was not a trash-collection day. He also stated that it was his responsibility to place trash out for collection, and that, other than on trash-collection days, he routinely kept the trash in a covered plastic garbage container by the home's back steps at the rear door of the residence, which was away from the alley where the trash was collected and away from any public area. He also stated that the rear yard was protected by a fence with a gate that was always locked.
Third, Tate submitted an affidavit from a defense investigator who verified that the rear yard of Tate's residence was fenced and that, when the garbage container was at the rear steps near the back door of the home, the container was not accessible to a nonresident unless that person were to go through the gate or over the fence and into the yard.
Fourth, he submitted a number of photographs of the rear yard and back steps of the residence, depicting the locked gate, the yard, and the area where the trash was kept.
Fifth and finally, he submitted a copy of another search warrant affidavit that Agent Manners had submitted two months earlier in an unrelated case, in which Agent Manners described another trash investigation he had conducted. In that affidavit, as in the one at issue in this case, Agent Manners stated that he had seized "two trash bags easily accessible from the rear yard." But, unlike here, in the earlier affidavit, Agent Manners also stated that the trash bags were found in "a typical location for trash pick-ups and consistent to the location of neighbors."
After reviewing this evidence and hearing argument from counsel, the district court denied Tate's request for an evidentiary hearing pursuant to Franks. The court agreed with Tate that the evidence obtained from the trash investigation was the warrant's only real information linking Tate's residence to the alleged illegal activity and therefore that the statements regarding the trash investigation were essential to a finding of probable cause. But the court observed that even if Tate could prove that Agent Manners had scaled the fence, entered the backyard, and seized Tate's trash from a closed container just outside his back door, Tate still could not prevail on his motion to suppress the evidence. The court based this conclusion on the fact that Agent Manners' statement in the affidavit that the trash bags were "easily accessible from the rear yard of 709 North Longwood Street" was "literally true," even under Tate's description of how the events supposedly occurred. Focusing on the affirmative language that Agent Manners used, the district court explained that it had only two meanings, and at least one did not implicate an unconstitutional investigation: ...
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