US v. Toby Person

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:13-cr-00290-1. Copies to all parties and the district court. [1000089915]. [16-4712, 16-4713]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4712

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOBY GERMAINE PERSON,
Defendant - Appellant.

No. 16-4713

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOBY GERMAINE PERSON,
Defendant - Appellant.

Appeals from the United States District Court for the Southern District of West Virginia,
at Parkersburg. Thomas E. Johnston, District Judge. (6:13-cr-00290-1; 6:07-cr-00163-1)

Submitted: May 23, 2017

Decided: May 30, 2017

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Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David O. Schles, DAVID O. SCHLES, Charleston, West Virginia, for Appellant.
Carol A. Casto, United States Attorney, Joshua C. Hanks, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Toby Germaine Person appeals from his conviction for possession with intent to
distribute heroin, cocaine base, and cocaine. * On appeal, he challenges the denial of his
motion to suppress, contending that the officer’s affidavit did not provide probable cause
and that the affidavit made material omissions of fact. We affirm.
In reviewing a district court’s denial of a motion to suppress, we review legal
conclusions de novo and factual findings for clear error. United States v. Foster, 634
F.3d 243, 246 (4th Cir. 2011). When presented with a search warrant, the magistrate’s
task “is simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983).

We must determine whether the warrant application

“provide[d] the magistrate with a substantial basis for determining the existence of
probable cause.” Id. at 239. “[A] magistrate’s determination of probable cause should be
paid great deference by reviewing courts.” United States v. Clyburn, 24 F.3d 613, 617
(4th Cir. 1994) (internal quotation marks omitted).
We find that the district court properly found that the affidavit provided substantial
evidence of probable cause. The affidavit, executed by Detective Stalnaker, averred that,

*

Person also appeals from the revocation of his supervised release (No. 16-4713)
which was based on the possession with intent conviction herein appealed. Because we
affirm Person’s possession with intent conviction, we also affirm the revocation of his
supervised release.

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on August 3, 2013, officers conducted a traffic stop on a car driven by Bonnie Myers.
Jack Poland was a passenger. Officers recovered from the front seat of the car six
suspected Hydrocodone pills, two plastic baggies with suspected cocaine, and one plastic
baggie with suspected crack cocaine.
Myers and Poland were interviewed separately. Stalnaker interrogated Poland,
who stated that, earlier that evening, he and Myers went to the Comfort Inn where they
were met by “T,” a black male. Poland stated that they went to Room 215 where there
was also a white female and two children. Myers then purchased 7 grams of cocaine, an
eight ball of crack, and some Percocet pills from T. T obtained the cocaine and pills from
the bathroom of the hotel room by removing the tissue holder from the wall and obtaining
the items from the void. T had a large amount of cash in his pocket.
Another detective interviewed Myers. According to the affidavit, Myers stated
that Toby Person was currently staying at the Comfort Inn, possibly in Room 210, and
that she buys marijuana from him. Detectives responded to the Comfort Inn and spoke
with employees regarding Rooms 210 and 215. They learned that 210 was occupied by
two people with an Ohio address who paid in cash. Room 215 was occupied by a
“normal” customer, possibly a construction company.
We find that, contrary to Person’s argument, Poland’s statement was not “wholly
uncorroborated.”

First, the statements made by both Myers and Poland carried an

“indicia of reliability” since they had a motive to provide truthful information in hope of
lenient treatment.

See United States v. Miller, 925 F.2d 695, 699 (4th Cir. 1991).

Further, Poland’s statement was detailed and corroborated by the drugs seized from the
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vehicle. Poland and Myers independently identified Person as a drug dealer who was
staying at the Comfort Inn, and both had personal, first-hand knowledge.

Finally, the

investigators spoke with the Comfort Inn to determine whether Person was more likely in
Room 210 or 215 and determined that an out-of-state couple, paying in cash, were in
Room 210. Because the affidavit provided a substantial basis for a finding of probable
cause, Person’s challenge of the magistrate judge’s ruling is without merit.
Person next contends that the district court erred in denying the motion to suppress
on the grounds that intentional or reckless material omissions from the affidavit rendered
it misleading and that inclusion of the improperly omitted evidence would have defeated
probable cause. Specifically, Person contends that the affidavit omitted the following
portions of Myers’ statement: (1) she affirmatively denied having been inside the
Comfort Inn, (2) she denied purchasing the drugs that were in the car, and (3) her belief
that Person was in Room 210 was based on hearsay.
In Franks, the Supreme Court ruled that a defendant is entitled to a hearing on the
validity of the search warrant affidavit if he "makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and . . . the allegedly false
statement is necessary to the finding of probable cause." Franks, 438 U.S. at 155-56.
We review for clear error the factual determinations underlying the denial of such a
motion, and review de novo the legal conclusions. United States v. Allen, 631 F.3d 164,
171 (4th Cir. 2011). For a criminal defendant to be entitled to a Franks hearing, we have

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required a “dual showing[,] . . . which incorporates both a subjective and an objective
threshold component.” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990).
The defendant carries a heavy burden in showing that a Franks hearing is
necessary. United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994). Additionally, the
“showing ‘must be more than conclusory’ and must be accompanied by a detailed offer
of proof.” Colkley, 899 F.2d at 300. Accordingly, allegations of such misconduct must
be supported through affidavits and sworn witness statements, or an explanation of why
they cannot be provided. Franks, 438 U.S. at 171. We review de novo a district court
determination that a defendant has not made a proper showing to trigger a Franks
hearing. United States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008).
We find that Person has not established that he was entitled to a full Franks
hearing. Even after a limited hearing, Person did not offer any evidence to prove that
Stalnaker intentionally omitted information regarding Myers’ statement. Instead, the
limited information regarding Myers’ statement appears to have been the result of the
confusing and inconsistent nature of the statement itself. Of note, while the affidavit did
not include portions of Myers’ statement that cut against probable cause, it also did not
include information that would have further supported probable cause, including Myers’
nonverbal communication and her identification of the people who allegedly informed
her that Person was in Room 210, people who were known to officers as reliable
informants.
Moreover, even assuming that Stalnaker’s affidavit was intentionally false and
misleading, probable cause would still have existed to support the search warrant even
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with the alleged omitted statements. See Illinois v. Gates, 462 U.S. 213, 238 (1983)
(holding that viewing the totality of the circumstances, the issuing court must believe that
there is “a fair probability that contraband or evidence of a crime will be found in a
particular place”). Given that both Poland and Myers identified Person as a drug dealer
based on first hand information and that both agreed that he was staying at the Comfort
Inn, we discern no reversible error in the district court’s failure to order a full Franks
hearing.
Accordingly, we affirm Person’s conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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