United States v. Jones, 110619 FED4, 18-4671

Docket Nº:18-4671
Opinion Judge:BARBARA MILANO KEENAN, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY OWEN JONES, Defendant-Appellant.
Attorney:Aaron David Moss, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Lara Kay Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,...
Judge Panel:Before NIEMEYER, KEENAN, and RUSHING, Circuit Judges.
Case Date:November 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

GARY OWEN JONES, Defendant-Appellant.

No. 18-4671

United States Court of Appeals, Fourth Circuit

November 6, 2019

Argued: September 20, 2019

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:18-cr-00023-GMG-RWT-1)

ARGUED:

Aaron David Moss, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant.

Lara Kay Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

ON BRIEF:

Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant.

William J. Powell, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Before NIEMEYER, KEENAN, and RUSHING, Circuit Judges.

BARBARA MILANO KEENAN, Circuit Judge.

Gary Jones entered a conditional guilty plea to being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). On appeal, he challenges the denial of his motion to suppress various ammunition and ammunition components seized from his residence pursuant to a search warrant. The warrant, which authorized a search for evidence of "threats of terrorist acts" (terrorist threats) under W.Va. Code § 61-6-24, was based on a series of threats that Jones made online against members of law enforcement.

Jones argues that the search warrant was invalid for two reasons. First, he asserts that the warrant lacked probable cause on its face, because his statements did not constitute terrorist threats under West Virginia law, and because the affidavit submitted by police to obtain the warrant (the warrant affidavit) failed to establish the required nexus between his residence and the evidence sought. Second, Jones alternatively maintains that even if the warrant was facially valid, the magistrate's probable cause determination was undermined by the omission of several statements from the warrant affidavit. Jones claims that he made a substantial preliminary showing that these omissions were both intentional and material, and thus separately challenges the district court's denial of his request for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978).

Upon our review, we conclude that the search warrant was supported by probable cause, and that the alleged omissions in the warrant affidavit were immaterial to the magistrate's probable cause determination. We therefore affirm the district court's judgment.

I.

We recount the facts presented to the state magistrate who issued the challenged warrant. Owens ex rel. Owens v. Lott, 372 F.3d 267, 277 (4th Cir. 2004). Because the district court denied Jones' suppression motion, we state the evidence in the light most favorable to the government. United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013).

In July 2017, Martinsburg Police Corporal E.C. Neely arrested Jones for driving while his license was suspended. The next day, in statements made on Facebook, Jones announced that he was "on a cop manhunt" for Neely, and requested information from "anybody out there" regarding Neely's whereabouts.1

About six months later, Jones escalated his threat. In a series of four Facebook "posts" in January 2018, Jones declared that he was on a "manhunt" for three law enforcement officers, all of whom he identified by name. Jones asked for information regarding where the officers lived, stated his "need" to find them, and promised that he had "something" for them when he did. Addressing Officer Neely in particular, Jones wrote: "Eric Neely I feel sorry for you . . . when I find ya . . . I got something really interesting for you."

About six weeks later, in February 2018, Jones expanded his online threats to include all police officers, whom he collectively referred to as "pigs." Writing again on Facebook, Jones stated that no "pigs" should "come to my house at all" and that he was "going to pull this trigger, bang, bye." He also explicitly warned: "If pigs come here here [sic] be careful."

Jones' rhetoric escalated still further the following day in...

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