U.S. v. Vanness, No. 95-3083

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: RANDOLPH; TATEL
• Citation: 318 U.S. App. D.C. 95,85 F.3d 661
• Parties: UNITED STATES of America, Appellee, v. Charles Lester VANNESS, Appellant.
• Decision Date: 07 June 1996
• Docket Number: No. 95-3083

Page 661

85 F.3d 661 318 U.S.App.D.C. 95 UNITED STATES of America, Appellee,
v.
Charles Lester VANNESS, Appellant. No. 95-3083. United States Court of Appeals,
District of Columbia Circuit. Argued March 28, 1996.
Decided June 7, 1996.

Appeal from the United States District Court for the District of Columbia (94cr00432-01).

Page 662

[318 U.S.App.D.C. 96] L. Barrett Boss, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.

Geoffrey G. Bestor, Assistant United States Attorney, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas J. Tourish, Jr., and Edward G. Burley, Assistant United States Attorneys.

Before: SILBERMAN, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge TATEL.

RANDOLPH, Circuit Judge:

This appeal from a criminal conviction raises two issues, the first concerning the legality of a search pursuant to a warrant, the second concerning the sentence.

As to the search, the dispute goes to the sufficiency of the detective's affidavit, which convinced a judge of the Superior Court of the District of Columbia to issue the warrant. The three-page, single-spaced, typed affidavit reported that during the preceding months, three independent informants told the police that an individual was selling crack cocaine from a basement apartment at 513 Florida Avenue. The information from two of the informants was at least two months old; the third report came within 24 hours of the detective's signing his affidavit, from an individual who personally knew the target and said that he usually carried narcotics on his person. The detective's affidavit recounted that, as undercover agents accompanied by the third informant approached the apartment to make a controlled buy, the informant identified the target--Vanness--as he was driving away. Police stopped Vanness's car and asked him to step out, at which point someone--Vanness, according to the passenger--threw two pouches containing 31 packets of a rock-like substance out of the passenger window. The material field-tested positive for cocaine and the police arrested Vanness. The police also connected Vanness to the apartment by establishing that his mother was there. The affidavit recited Vanness's two prior felony convictions in drug prosecutions and the experience of the detective, and other police officers, that narcotics merchants frequently maintain drug paraphernalia, records and weapons on the premises where they distribute drugs.

The ensuing search of the apartment yielded 51 grams of crack cocaine, about $500 in cash, two scales, ziplock bags suitable for packaging crack cocaine, and an Intratech Tec-9 pistol. The police also found personal papers and clothing belonging to Vanness, photographs of him, and his fingerprints.

Vanness's claim is that the sentence in the affidavit--"The target was observed to throw out of the passenger window two pouches."--constituted a material misrepresentation requiring, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), suppression of the evidence recovered in the search. Read in isolation, the sentence was strictly true: someone--the passenger, it turns out--did indeed observe Vanness throwing drugs out of the car. Yet we have no doubt the judge issuing the warrant had the misimpression that the someone was a police officer. The affidavit's immediately preceding sentence stated: "The target was approached and asked to step from the vehicle." This must have referred to police officers. And so, when the next sentence reported what someone observed during the stop, one would naturally assume the observer was also a police officer. No other candidates appear. The affidavit does not even mention that Vanness had a passenger.

Still, the district court rightly refused to exclude the evidence. If we treated the contested statement as untrue, the warrant would nevertheless stand unless the detective deliberately falsified the affidavit, or inserted the statement in reckless disregard of its truth. Franks, 438 U.S. at 156, 98 S.Ct. at 2676-77; United States v. Warren, 42 F.3d 647, 653 (D.C.Cir.1994). The district court heard the detective's testimony at the suppression hearing and found that he had not phrased the sentence in order to mislead.

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