United States v. Somerlock

• Decision Date: 04 May 2022
• Docket Number: Crim. No. ELH-19-369
• Parties: UNITED STATES of America v. Carl SOMERLOCK, Defendant.
• Court: U.S. District Court — District of Maryland

602 F.Supp.3d 791

UNITED STATES of America

v.Carl SOMERLOCK, Defendant.

Crim. No. ELH-19-369

United States District Court, D. Maryland.

Signed May 4, 2022

Brandon K. Moore, Patricia Corwin Mclane, Assistant US Attorney, U.S. Attorney's Office (USA/FPD), Baltimore, MD, for United States of America.

Robert C. Bonsib, Marcus and Bonsib, Greenbelt, MD, Andrew C. White, Silverman Thompson Slutkin and White LLC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

Ellen L. Hollander, United States District Judge

In this illegal firearms case, the Court must determine whether to grant a hearing under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667(1978), and whether to suppress the evidence obtained from a search warrant executed at the home of defendant Carl Somerlock on March 31, 2019. This Memorandum Opinion resolves only the first issue.

Defendant Carl Somerlock was indicted on July 30, 2019 (ECF 1) and charged with multiple offenses: possession of machine guns, in violation of 18 U.S.C. § 922(o) (Count One); possession of unregistered firearms and a silencer, in violation of 26 U.S.C. §§ 5841, 5845(a), 5845(b), 5861(d), and 5871, and 18 U.S.C. § 921(a)(23), (24) (Count Two); and possession of firearms and a silencer, without serial numbers, in violation of 26 U.S.C. §§ 5845(a), 5845(b), 5861(i), and 5871, and 18 U.S.C. § 921(a)(23), (24) (Count Three). The Indictment followed the search of Somerlock's house on March 31, 2019, which uncovered 42 firearms, including several that are illegal to possess under federal law. The search was conducted pursuant to a warrant issued that day by a Maryland State judge. See ECF 23-7 (the "Search Warrant").

The Search Warrant is rooted in a rather new Maryland statute, commonly called the "red flag law." See ECF 23 at 24-26. It is found in Subtitle 6 of Title 5 of the Public Safety Article of the Maryland Code (2018 Repl. Vol., 2021 Supp.). Subtitle 6 is called "Extreme Risk Protective Orders." According to the defendant, the Affidavit in support of the Search Warrant, submitted by Corporal Molly Gale of the Howard County Police Department ("HCPD"), intentionally or recklessly contained material false statements and material omissions. Therefore, defendant has filed a "Motion to Suppress and Request for an Evidentiary Hearing and a Franks Hearing." ECF 23 (the "Motion"). The Motion is supported by several exhibits. ECF 23-1 to ECF 23-9.¹

The government opposes the Motion. ECF 31 (the "Opposition"). And, the defense has replied. ECF 32 (the "Reply"). The government (ECF 39) and the defense (ECF 41) have also submitted supplemental briefing.²

The Court held a Motion hearing on April 29, 2022, at which argument was presented.³ For the reasons that follow, I shall grant the Franks hearing.⁴

I. Legal Standards

A. Franks Principles

The Motion challenges the Search Warrant on the basis of both the Fourth Amendment to the Constitution and Article 26 of the Maryland Declaration of Rights. Article 26 of the Maryland Declaration of Rights is construed in pari materia with the Fourth Amendment. Muse v. State , 146 Md. App. 395, 401 n.7, 807 A.2d 113, 117 n.7 (2002) ; see also, e.g. , Stutzman v. Krenik , 350 F. Supp. 3d 366, 377 (D. Md. 2018) ; Upshur v. State , 208 Md. App. 383, 397, 56 A.3d 620, 628 (2012), cert. denied , 430 Md. 646, 62 A.3d 732 (2013).⁵

Ordinarily, an accused is not entitled to an evidentiary hearing to challenge a facially valid search warrant. United States v. Allen , 631 F.3d 164, 171 (4th Cir. 2011) ; see United States v. Pulley , 987 F.3d 370, 376 (4th Cir. 2021) ; United States v. Moody , 931 F.3d 366, 370 (4th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 823, 205 L.Ed.2d 496 (2020). When reviewing the issuing judge's probable cause finding, consideration is ordinarily confined to the four corners of the application documents. See , e.g. , Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). There is, however, a narrow exception to this rule, which the Supreme Court established in the seminal case of Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Franks established that, under limited circumstances, an accused is entitled to an evidentiary hearing concerning the veracity of statements in a warrant application.

In Franks , the Supreme Court articulated a two-prong test as to what a criminal defendant must show when challenging the veracity of statements made in an Affidavit supporting a search warrant. The defendant has the burden to establish both prongs of the test by a preponderance of the evidence. Franks , 438 U.S. at 156, 98 S.Ct. 2674. Given the "presumption of validity with respect to the affidavit supporting the search warrant," id. at 171, 98 S.Ct. 2674, the Fourth Circuit has characterized the burden as a "heavy" one. United States v. Tate , 524 F.3d 449, 454 (4th Cir. 2008). If both prongs are met, the search warrant must be voided and the fruits of the search excluded. Franks , 438 U.S. at 155-56, 98 S.Ct. 2674 ; see Pulley , 987 F.3d at 376.

Under the first prong—the "intentionality" prong—the defendant must show that "a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks , 438 U.S. at 155-56, 98 S.Ct. 2674. An officer acts with reckless disregard when he fails to "inform the magistrate of facts she subjectively knew would negate probable cause." United States v. Haas , 986 F.3d 467, 475 (4th Cir. 2021), cert. denied , ––– U.S. ––––, 142 S. Ct. 292, 211 L.Ed.2d 136 (2021).

Under the second prong—the "materiality" prong—the defendant must show that, "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause." Franks , 438 U.S. at 156, 98 S.Ct. 2674 ; see United States v. Seigler , 990 F.3d 331, 334 (4th Cir. 2021), cert. denied , ––– U.S. ––––, 142 S. Ct. 336, 211 L.Ed.2d 179 (2021). In other words, the defendant must show that, without those false statements, the Affidavit cannot support the finding of probable cause. United States v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011) ; United States v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011) ; United States v. Richardson , 607 F.3d 357, 369 (4th Cir. 2010). On the other hand, if the allegedly false statements are not necessary for the probable cause finding, the accused is not entitled to a Franks hearing. Franks, 438 U.S. at 155-156, 98 S.Ct. 2674 ; see also United States v. Doyle , 650 F.3d 460, 468 (4th Cir. 2011) (stating that "false information will only void a warrant if the information was necessary to the finding of probable cause."); Allen , 631 F.3d at 171 ; United States v. Gary , 528 F.3d 324, 328 (4th Cir. 2008).

The two-pronged Franks test applies to cases "in which an agent includes affirmatively false statements in a warrant affidavit, [and] also when an agent omits relevant facts from the affidavit." United States v. Lull , 824 F.3d 109, 114 (4th Cir. 2016) (citing United States v. Colkley , 899 F.2d 297, 300 (4th Cir. 1990) ) (emphasis in Lull ); see United States v. Cioni , 649 F.3d 276, 286 (4th Cir. 2011). But, the Fourth Circuit clarified in Lull , 824 F.3d at 115 : "Understandably, the defendant's burden in showing intent is greater in the case of an omission because ‘[a]n affiant cannot be expected to include in an affidavit every piece of information gathered in the course of an investigation.’ " (citing Colkley , 899 F.2d at 300 ). Thus, "[m]erely identifying factual omissions is insufficient." Clenney , 631 F.3d at 664. Therefore, the fact of omission "cannot alone show recklessness or intentionality." Haas , 986 F.3d at 475.

"To establish entitlement to a Franks hearing based on information omitted from the warrant affidavit, [the defendant] [is] required to make a ‘substantial preliminary showing’ that the omissions were intentional or reckless, and that the omitted information was material to the magistrate's probable cause determination." United States v. Jones , 942 F.3d 634, 640 (4th Cir. 2019) (citation omitted); see United States v. Wharton , 840 F.3d 163, 168 (4th Cir. 2016). In other words, the omission must be "necessary to the finding of probable cause." Franks, 438 U.S. at 156, 98 S.Ct. 2674 ; see also Lull , 824 F.3d at 117. So, "to obtain a Franks hearing, the defendant must show that the omissions were ‘designed to mislead, or ... made in reckless disregard of whether they would mislead ’ and that the omissions were material, meaning that their ‘inclusion in the affidavit would defeat probable cause.’ " Clenney , 631 F.3d at 664 (quoting Colkley , 899 F.2d at 301 ) (emphasis in Clenney ).

Of import here, a showing that an officer was merely negligent, or that the omission was simply an innocent mistake, is insufficient to warrant suppression. Franks , 438 U.S. at 171, 98 S.Ct. 2674 ; Miller v. Prince George's Cty. , 475 F.3d 621, 627-28 (4th Cir. 2007) (citing Franks , 438 U.S. at 171, 98 S.Ct. 2674 ); see also United States v. Shorter , 328 F.3d 167, 170 (4th Cir. 2003) ("[M]ere[ ] negligen[ce] in recording the facts relevant to a probable-cause determination" is not enough). Moreover, "the significance – or insignificance – of a particular omission to the determination of probable cause may inform [the court's] conclusion regarding the agent's intent.^{[ ]}" Lull , 824 F.3d at 117.

Franks is inapplicable when inclusion of the omitted facts would not have changed the "probable cause calculus...." Cioni, 649 F.3d at 286. As the Jones Court explained, if the omitted facts are inserted into the warrant Affidavit and, as " ‘revised,’ " there is still probable cause, then the defendant is not entitled to a Franks hearing. Jones , 942 F.3d at 640. Put another way, if the Affidavit establishes probable cause, despite an alleged omission, the omission is of no moment. Jones , 942 F.3d at 640 ; Lull , 824 F.3d at 117. As the...