US v. Whitney Kent

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cr-00088-1. Copies to all parties and the district court. [999852504].. [15-4288]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4288

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WHITNEY REANNE KENT,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Thomas E. Johnston,
District Judge. (2:14-cr-00088-1)

Argued:

March 24, 2016

Decided:

June 14, 2016

Before DIAZ and HARRIS, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished opinion.
Judge Harris
opinion, in which Judge Diaz and Judge Gibney joined.

wrote

the

ARGUED: Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant.
Joshua Clarke Hanks,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
ON BRIEF:
Christian M. Capece, Federal Public
Defender, Jonathan D. Byrne, Research & Writing Specialist,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant.
R. Booth Goodwin II, United States

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Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:
This case began when United States Postal Inspector Joshua
Mehall briefly detained a package addressed to appellant Whitney
Kent.

That detention was based on characteristics that Mehall

deemed

suspicious,

Hackney,

a

canine

as

well

handler

as

a

for

tip

the

from

Detective

Charleston,

West

Justin

Virginia

Police Department.

After Hackney’s dog alerted to the package,

Mehall

search

obtained

a

warrant,

opened

the

package,

and

discovered illicit oxycodone pills.
After she was indicted, Kent moved to suppress the evidence
uncovered by Mehall, challenging both the initial detention of
the package and the warrant authorizing its search.
sought

to

cross-examine

Hackney,

declined to call as a witness.

whom

the

Kent also

government

had

The district court denied Kent’s

suppression motions and did not require Hackney to testify.

We

find no error in those rulings and affirm.

I.
A.
On

December

Charleston,

West

5,

2012,

Virginia

addressed to Whitney Kent.

Inspector
post

Mehall,

office,

working

detained

a

at

the

package

Mehall detained Kent’s package for

the following reasons: (1) it was an Express Mail envelope with
a handwritten label sent person-to-person, which Mehall found to
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be unusual; (2) the package was not “perfectly flat,” J.A. 221,
suggesting that it might contain something other than paper;
(3) the package was sent from New Jersey, which, according to
Mehall, was a “source state[]” for drugs in West Virginia, J.A.
199; and (4) the name of the return addressee was not associated
with the return address in Accurint, a database drawing from
publicly available records.

In addition, Detective Hackney, a

Charleston Police Department canine handler who was assisting
Mehall,

informed

Mehall

that

he

recognized

Kent’s

name

from

other drug-related investigations.
Outside
consisting
packages.

of
of

Hackney’s
Kent’s

presence,

parcel

and

Mehall
several

created
pre-made

a

lineup
“blank”

Hackney then ran his dog, Peanut, through the lineup.

Mehall observed Peanut sit in front of the package addressed to
Kent and refuse to move until Hackney rewarded her.

Hackney

informed Mehall that Peanut had alerted to Kent’s package.
Mehall
package.

applied
In

the

for

a

warrant

affidavit

in

to

open

support

and
of

search
the

the

warrant

application, Mehall cited Peanut’s alert, the characteristics of
the package, and Hackney’s statement about recognizing Kent’s
name.
dog.”

He also described Peanut as “a trained narcotic detection
J.A.

66.

Mehall

received

the

warrant,

package, and discovered illicit oxycodone pills.

4

opened

the

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Mehall arranged a controlled delivery to Kent, and Kent
came

to

the

Charleston

post

office

to

retrieve

the

package.

After Kent signed for the package, Mehall and Hackney approached
her and identified themselves.

Kent admitted that the package

contained oxycodone pills and stated that they were intended for
her boyfriend.

At that point, Hackney arrested Kent.

It is uncontested that about a month after Kent’s arrest,
Hackney fabricated a dog-sniff report in a separate case.

The

falsity of that report was discovered more than a year later, in
connection with the prosecution to which it was related.
B.
Kent was indicted in the Southern District of West Virginia
for

knowingly

distribute

and

intentionally

oxycodone,

in

possessing

violation

of

21

with

U.S.C.

intent

to

§ 841(a)(1).

She filed two motions to suppress the parcel and its contents.
In one, she challenged the initial detention of the package,
arguing that it violated the Fourth Amendment because it was not
supported by the requisite reasonable suspicion.
she

challenged

the

search

warrant

itself,

In the other,

questioning

the

veracity of the affidavit Mehall submitted in support of his
warrant application.
With

respect

to

Mehall’s

affidavit,

Kent

argued,

first,

that the assertion that Peanut was “a trained narcotic detection
dog” was made with “reckless disregard for the truth.”
5

J.A. 36

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(emphasis omitted); see Franks v. Delaware, 438 U.S. 154, 156,
171 (1978) (defendant challenging warrant affidavit must show
that it contains a “deliberate falsehood” or a statement made
with “reckless disregard for the truth” that is “necessary to
the

finding

of

probable

cause”).

According

to

Kent,

though

Peanut was trained and certified for narcotics detection, she
had not been trained to alert to oxycodone pills specifically,
and

Hackney

Second,

knew

Kent

undermined

that

argued

the

when

the

that

search

warrant

Hackney’s

reliability

of

his

lack

was

of

obtained.

credibility

statements

to

Mehall,

including his report — transmitted by Mehall in his affidavit —
that Peanut had alerted to the package.
The district court held a hearing on Kent’s suppression
motions on January 6, 2015.
not

Hackney,

including

as

the

a

The government called Mehall, but

witness.

president

Kent

and

called

numerous

the

records

witnesses,

custodian

of

the

organization that certified Hackney to handle Peanut, an expert
in canine training and supervision, a pharmacology expert, and
the

original

testimony,
Peanut’s

owner

Kent

and

trainer

attempted

training

and

to

the

cast

of

Peanut.

doubt

integrity

of

on
the

Through
the

this

quality

package

of

lineup,

ostensibly to show that a false statement had been included in
the

warrant

affidavit.

She

also

6

argued

that

she

should

be

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permitted

to

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question

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Hackney,

because

his

credibility

was

central to her case.
The district court acknowledged that Hackney’s credibility
might

be

questionable,

credibility

but

it

expressed

issues — discovered

only

doubt

after

question — were relevant to this case.

the

that

those

events

in

The court took Kent’s

request to question Hackney, the Franks issue, and the other
matters addressed in the hearing under advisement.
On

January

30,

motions to suppress.

2015,

the

district

court

denied

Kent’s

The court found that Mehall had reasonable

suspicion to detain the package and conduct the dog sniff based
on his observations about the physical characteristics of the
package
noted

and

that

the

return

Hackney’s

address

statement

mismatch.
about

The

court

recognizing

further

Kent’s

name

lent support to Mehall’s decision, but it found that Mehall had
reasonable

suspicion

to

detain

the

package

even

without

Hackney’s comment.
The court also concluded that Kent had not made the showing
that, under Franks, would entitle her to an evidentiary hearing
on the veracity of Mehall’s affidavit.
With respect

to

the

affidavit’s

See 438 U.S. at 156.

assertion

that

Peanut

was

a

“trained narcotic detection dog,” the court found no material
falsity,

and

rejected

Kent’s

“hindsight bias,” J.A. 523:

argument

as

suffering

from

Mehall and Hackney sought a warrant
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for

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contraband

in

general,

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not

for

oxycodone

pills

in

particular, so whether Peanut was trained to detect oxycodone
was not relevant to the probable cause determination.

As to

Hackney’s credibility regarding Peanut’s alert, the court held
that Mehall “could have been neither deliberate nor reckless” in
relaying

Hackney’s

report

of

an

alert,

given

that

Hackney’s

false dog-sniff report was not uncovered until after the events
in question.

J.A. 524.

The court never required Hackney to

testify, although it did not separately deny Kent’s request nor
address a supplemental memorandum Kent had filed on the matter.
A few days after the district court denied her motions,
Kent pleaded guilty to the indictment.

She was sentenced to

five years of probation, with the first six months to be served
on home confinement.

Kent’s plea was conditional, however, and

she reserved the right to appeal the order denying her motions
to suppress.

This timely appeal followed.

II.
We review the district court’s findings of fact on a motion
to suppress for clear error and its legal conclusions de novo.
United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010).
so

doing,

favorable

we
to

must
the

construe
prevailing

the

evidence

party,

and

in
give

the
due

light

“In
most

weight

to

inferences drawn from those facts by resident judges and law
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enforcement officers.”
marks omitted).

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Id. (citations and internal quotation

We review the district court’s conclusions as

to the relevance of evidence for an abuse of discretion.

United

States v. Parker, 262 F.3d 415, 420 (4th Cir. 2001).
A.
The

Fourth

Amendment’s

protection

against

unreasonable

searches and seizures extends to letters and sealed packages,
which are part of “the general class of effects in which the
public

at

large

has

a

legitimate

expectation

of

United States v. Jacobsen, 466 U.S. 109, 114 (1984).

privacy.”
A package

may be detained briefly for investigative purposes, but only if
there is reasonable suspicion that it contains contraband.

See

United States v. Van Leeuwen, 397 U.S. 249, 252–53 (1970); cf.
United States v. Place, 462 U.S. 696, 706 (1983) (detention of
luggage).

As with the detention of an individual, reasonable

suspicion

in

this

objective

basis

for

context

requires

suspecting

totality of the circumstances.”

legal

a

“particularized

wrongdoing”

under

and
“the

See United States v. Arvizu,

534 U.S. 266, 273 (2002) (citation and internal quotation marks
omitted) (detention of “persons or vehicles”); see also United
States v. Gomez, 312 F.3d 920, 924 (8th Cir. 2002) (detention of
mail); United States v. Gill, 280 F.3d 923, 928 (9th Cir. 2002)
(same).

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Here, Mehall’s first-hand observations, in conjunction with
Hackney’s statement that he recognized Kent’s name from other
drug-related investigations, supplied the reasonable suspicion
necessary

to

detain

the

package.

As

the

district

court

explained, by virtue of his training and experience, Mehall was
able

to

“flag”

certain

characteristics

of

Kent’s

package

as

unusual or otherwise consistent with the presence of drugs: the
package

was

sent

by

Express

Mail

individual-to-individual,

rather than business-to-business, as is more often the case; it
had

a

handwritten

label,

rather

than

the

more

common

typed

label; the name of the return addressee was not associated with
the return address in the Accurint database; it originated from
New Jersey, one of “six to eight known source states for drugs
arriving

in

West

Virginia”;

and

the

accommodate “more than just paper.”
surely

is

true,

as

Kent

package’s

J.A. 515.

contends,

that

none

size

would

And while it
of

that

is

inconsistent with innocent activity, it also is true that even
innocent

factors,

suspicion.

taken

together,

may

add

up

to

reasonable

See United States v. Digiovanni, 650 F.3d 498, 511

(4th Cir. 2011) (citing United States v. Sokolow, 490 U.S. 1, 9
(1989)).
We

need

not

decide

whether

Mehall’s

observations

alone

would give rise to reasonable suspicion, as the district court
concluded, because here we also have another factor:
10

Hackney’s

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statement to Mehall that he recognized Kent’s name from prior
drug-related
have

been

investigations.

insufficient

to

While

this

furnish

statement

reasonable

alone

suspicion,

may
it

provided an additional and particularized detail about Kent’s
package that, under the totality of the circumstances, justified
Mehall’s

decision

investigation.

to

detain

the

package

for

a

brief

Cf. United States v. Lakoskey, 462 F.3d 965,

969–70, 976 (8th Cir. 2006) (finding reasonable suspicion to
detain Express Mail package with handwritten label sent from
drug source state where return addressee’s name was fictitious
and the inspector had received a tip to watch for drug shipments
to defendant). 1
denial

of

Kent’s

Accordingly, we affirm the district court’s
motion

to

suppress

for

lack

of

reasonable

suspicion.
B.
Kent’s second claim is that the warrant for the ultimate
search of her package was issued without the requisite probable

1

In determining whether reasonable suspicion existed, we
consider the “facts within [Mehall’s] knowledge” when the
package was detained.
See United States v. Powell, 666 F.3d
180, 186 (4th Cir. 2011) (“The reasonable suspicion standard is
an objective one, so we examine the facts within the knowledge
of [the officer] to determine the presence or nonexistence of
reasonable suspicion.” (citation and internal quotation marks
omitted)).
At that time, Mehall had no reason to doubt
Hackney’s
credibility,
and
Hackney’s
statement
therefore
supported Mehall’s objectively reasonable suspicion.

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cause.

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Kent does not contest that on its face, the affidavit

submitted

with

the

warrant

application — relying

on

Peanut’s

alert to the package, as well as Mehall’s observations of the
package and Hackney’s recognition of Kent’s name — supported a
probable cause finding.

Instead, Kent challenges the veracity

of Mehall’s affidavit, claiming that it includes deliberately or
recklessly falsified information material to the probable cause
determination.
In

Franks

v.

Delaware,

the

Supreme

Court

set

out

the

limited circumstances under which a defendant may contest the
presumptive validity of a search-warrant affidavit.
155–56.
the

438 U.S. at

Under Franks, a defendant is entitled to a hearing into

truth

of

“substantial

a

warrant

preliminary

affidavit

showing,”

only

id.

at

if

she
that

155,

makes

a

“(1) the

warrant affidavit contained a deliberate falsehood or statement
made with reckless disregard for the truth and (2) without the
allegedly

false

sufficient

to

statement,

support

a

the

finding

warrant
of

affidavit

probable

cause.”

is

not

United

States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (citation
and

internal

quotation

marks

omitted).

That

“substantial

preliminary showing” is to be made by way of “[a]ffidavits or
sworn

or

defendant

otherwise
as

an

reliable

“offer

of

statements”

proof”;

submitted

conclusory

by

allegations

the
of

falsity or the “mere desire to cross-examine” a police officer
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are

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not

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enough.

Franks,

Pg: 13 of 17

438

U.S.

at

171.

And

unless

a

defendant first meets her burden under both the falsity and the
materiality

prongs

of

evidentiary

hearing

warrant affidavit.

Franks,

at

which

she
to

is

not

explore

entitled

the

to

veracity

an

of

a

Id. at 171–72; see also United States v.

Tate, 524 F.3d 449, 454 (4th Cir. 2008) (describing defendant’s
burden as a “heavy one to bear”).
We agree with the district court that Kent did not make the
threshold showing that would entitle her to a Franks hearing.
First, the evidence of Peanut’s training and certification to
detect
evidence

marijuana,
that

cocaine,

Kent

herself

heroin,

and

introduced

methamphetamine —

before

the

district

court — is enough to show that the affidavit’s description of
Peanut

as

deliberately

a

“trained

or

narcotic

recklessly

false.

detection
And

dog”

even

if,

was

not

as

Kent

contends, Peanut was not trained to detect oxycodone pills in
particular, omission of that information was not material to the
magistrate’s

probable

cause

determination,

as

required

under

Franks.

As the district court explained, Mehall’s affidavit

asserted

probable

cause

to

search

for

controlled

substances

generally, not oxycodone specifically, and Peanut’s alert to the
package

was

enough

to

establish

controlled substance was inside.

probable

cause

that

some

See United States v. Robinson,

707 F.2d 811, 815 (4th Cir. 1983) (alert by dog trained to
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detect marijuana, cocaine, and heroin establishes probable cause
and “the fact that a different controlled substance was actually
discovered

does

not

vitiate

the

legality

of

the

search”).

Whatever the perspective from hindsight, at the time the warrant
issued, a clarification that Peanut’s training did not include
oxycodone

would

have

been

immaterial

to

the

magistrate’s

probable cause determination.
As to the second challenged assertion in the affidavit —
that Peanut alerted to Kent’s package — Kent cannot make the
requisite

“substantial

preliminary

showing”

of

falsity.

See

Franks, 438 U.S. at 155.

For the falsity of Mehall’s account of

an

exclusively

alert,

Kent

relies

on

questions

about

the

credibility of Hackney, who made the official determination that
Peanut had alerted and transmitted that determination to Mehall
for use in the affidavit.

But although Mehall acknowledged that

only Hackney was qualified to pronounce a dog alert, he also
testified

that

lineups,

having

he

was

“seen

familiar
Peanut

run

with
a

Peanut’s

parcel

behavior

line-up

in

numerous

times,” and that on this particular occasion, the dog “stopped
at

the

subject

[Hackney]

package

rewarded

and

her.”

would
J.A.

not
202.

move

off

Mehall’s

of

it

until

independent

observations thus corroborated Hackney’s report, and Kent has

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to

put

at

issue

Pg: 15 of 17

the

credibility

of

Mehall,

as

opposed to Hackney. 2
On appeal, rather than contesting these points directly,
Kent

argues

primarily

that

the

district

court

abused

its

discretion by not requiring Hackney to testify before denying
her a Franks hearing.

Only by calling Hackney as a witness and

impeaching his credibility, Kent contends, could she effectively
challenge the veracity of Mehall’s affidavit.
cart

before

preliminary

the

horse:

showing”

of

Only
falsity

2

after
and

making

But this puts the
the

materiality

“substantial
outlined

by

The government argues, and the district court appeared to
agree, that Kent would not be entitled to a Franks hearing even
if she could make a substantial preliminary showing that Hackney
intentionally fabricated Peanut’s alert, so long as Mehall, the
affiant, did not know or have reason to know that he was
transmitting false information to the magistrate.
We do not
endorse that position.
The Supreme Court in Franks described
itself as having adopted the “premise that police could not
insulate
one
officer’s
deliberate
misstatement
merely
by
relaying it through an officer-affiant personally ignorant of
its falsity.” See 438 U.S. at 163 n.6 (discussing Rugendorf v.
United States, 376 U.S. 528 (1964)). And courts have relied on
that premise to hold that a defendant may be entitled to relief
under Franks if an officer deliberately or recklessly causes a
falsehood to appear in an affidavit, even if the affiant him or
herself is not at fault.
E.g., United States v. Shields, 458
F.3d 269, 276 (3rd Cir. 2006) (“[I]t is beyond question that the
police cannot insulate a deliberate falsehood from a Franks
inquiry simply by laundering the falsehood through an unwitting
affiant who is ignorant of the falsehood.”); United States v.
Brown, 298 F.3d 392, 408 (5th Cir. 2002) (“[A] defendant is
entitled to a Franks hearing upon making a substantial
preliminary showing that a government official deliberately or
recklessly caused facts that preclude a finding of probable
cause to be omitted from a warrant affidavit, even if the
governmental official at fault is not the affiant.”).
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Franks would Kent have been entitled to an evidentiary hearing
at

which

she

veracity.

could
See

defendant’s

call

and

Franks,

request

to

cross-examine

438

call

U.S.

at

police

Hackney

about

158–60

officer

his

(discussing

as

witness

to

challenge veracity); id. at 171–72 (preliminary Franks showing
must be made before defendant is entitled to a hearing).

In any

event, whether or not Hackney’s statements could be trusted,
there was sufficient independent evidence to corroborate both
the nature of Peanut’s training and the existence of an alert to
Kent’s package.

To the extent that Kent’s request to compel

Hackney’s testimony may be understood as something separate and
apart

from

her

underlying

request

for

a

Franks

hearing,

the

district court did not abuse its discretion in denying it. 3

III.
Like

the

district

court,

we

recognize

that

Kent

has

identified a serious concern about Hackney’s credibility, which
may

have

significant

ramifications

in

other

cases.

But

the

district court did not err in holding that in this case, Kent
could not make a substantial showing that Mehall’s affidavit
3

The government contends that Kent is barred from a
separate challenge to the denial of her request for Hackney’s
testimony because her plea agreement preserved only her right to
appeal the denial of her motions to suppress.
For purposes of
this appeal, we assume without deciding that Kent’s conditional
plea did not foreclose her claim regarding Hackney’s testimony.
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included knowingly or recklessly false information material to
the probable cause determination.

Nor did the court err in

concluding that Mehall possessed reasonable suspicion to detain
Kent’s package in the first place.

Accordingly, we affirm the

judgment of the district court.
AFFIRMED

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