US v. David Rich

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00438-WDQ-1 Copies to all parties and the district court/agency. [998611133].. [10-4470]

Appeal: 10-4470

Document: 51

Date Filed: 06/14/2011

Page: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4470

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID RICH, a/k/a Oakie,
Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:08-cr-00438-WDQ-1)

Submitted:

May 23, 2011

Decided:

June 14, 2011

Before MOTZ, KING, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sicilia Englert, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant.
Rod J. Rosenstein, United States Attorney, Michael
C.
Hanlon,
Assistant
United
States
Attorney,
Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 06/14/2011

Page: 2 of 5

PER CURIAM:
David Rich was convicted, following a jury trial, of a
variety of drug- and firearm-related offenses and was sentenced
to a term of imprisonment of life plus twenty years.

Prior to

trial, Rich moved to suppress evidence seized in a search of a
particular

apartment

apartment”).

The

in

Windsor

district

court

Mill,

denied

Maryland

(“the

motion.

Rich

the

appeals the district court’s ruling.
On appeal, Rich argues that evidence seized from the
apartment should have been suppressed because in the affidavit
used to secure the warrant, the Government failed to establish a
nexus between the apartment and drug trafficking activity.

Rich

contends that the affidavit failed to establish the apartment
was Rich’s “residence.”
We review the factual findings underlying a district
court’s ruling on a motion to suppress for clear error and the
court’s

legal

592 F.3d

586,

(2010).

When evaluating the denial of a suppression motion, we

construe

589

de

novo.

(4th Cir.),

Id.

circumstances,

a

the

denied,

Government, the prevailing party below.
of

in

cert.

States
130

most

validity

evidence

United

light

the

the

conclusions

search

warrant

under

determining

whether

the

v.

S.

Kelly,

Ct.

favorable

3374

to

the

This court reviews

the

totality

issuing

judge

of
had

the
a

substantial basis for finding there was probable cause to issue
2

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Document: 51

the warrant.

Date Filed: 06/14/2011

Page: 3 of 5

Illinois v. Gates, 462 U.S. 213, 238-39 (1983);

United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005).
We afford great deference to the probable cause determination of
United States v. Allen, 631 F.3d 164, 173

the issuing judge.
(4th Cir. 2011).

We avoid applying “‘hypertechnical’ scrutiny

of affidavits lest police officers be encouraged to forgo the
warrant

application

process

altogether.”

United

States

v.

Robinson, 275 F.3d 371, 380 (4th Cir. 2001) (quoting Gates, 462
U.S. at 236).
Here, the affidavit provided abundant probable cause
for

justifying

apartment.

the

issuance

of

a

search

warrant

for

the

The affidavit recounted information police obtained

from a confidential informant that was corroborated during the
course of the investigation and prior to the issuance of the
warrant.

Police

placed

the

apartment

building

under

surveillance for an evening and identified the apartment where
Rich had spent the night.

The next day, when police confronted

and identified themselves to Rich, he fled, nearly hitting an
officer with his vehicle in the process.

After a brief pursuit,

police located Rich’s abandoned vehicle and found him hiding in
a wooded area.
cash.

They recovered several cell phones and $733 in

A K-9 scan of the vehicle indicated the presence of

narcotics.

Under the totality of the circumstances, we hold

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that the issuing judge had a substantial basis supporting the
finding of probable cause to search the apartment.
Next, Rich argues that the district court should have
granted

Franks *

a

hearing

because

Baltimore

detective

Brian

Shutt’s affidavit contained a false statement that Shutt saw
Rich

leave

the

representation
neutral

apartment.

“failed

magistrate

to

to

Rich

disclose

determine

asserts

facts

whether

that

that
there

would
was

Shutt’s
allow

a

sufficient

proof that Rich had come out of [the apartment].”
In

order

to

obtain

a

Franks

hearing

to

attack

a

facially sufficient warrant affidavit, a defendant must make a
substantial showing that a false statement critical to a finding
of

probable

reckless
affidavit.

cause

was

knowingly

disregard

for

the

and

truth,

intentionally,

included

in

the

or

with

warrant

See Franks, 438 U.S. at 155-56; United States v.

Clenney, 631 F.3d 658, 663 (4th Cir. 2011).

“This showing must

be more than conclusory and should include affidavits or other
evidence to overcome the presumption of the warrant’s validity.”
Clenney,

631

F.3d

alterations omitted).
*

at

663

(internal

quotation

marks

and

Where a defendant attacks an affidavit

Franks v. Delaware, 438 U.S. 154 (1978).

4

Appeal: 10-4470

based

Document: 51

on

Date Filed: 06/14/2011

omissions,

he

must

show

Page: 5 of 5

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.’”

Id. at 664 (quoting United States v.

Colkley, 899 F.3d 297, 301 (4th Cir. 1990)) (emphasis omitted).
Rich has failed to make the requisite showing.

Shutt

observed the man he would later learn was Rich on a third-floor
balcony of the apartment building.
as he exited the building.

Rich was under surveillance

Based on a comparison with other

buildings, Shutt was able to determine that the balcony belonged
to the apartment at issue.
the

intermediate

apartment,

the

mislead, nor

steps

that

omission

made

in

Although Shutt’s affidavit omitted
enabled

him

was

neither

material,

reckless

disregard

of

to

identify

the

designed

whether

it

to

would

mislead.
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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