United States District Court, D. Maryland
L. Hollander United States District Judge
child pornography case, the Court must determine whether an
error and an omission in an affidavit in support of a search
warrant justify a Franks hearing. See Franks v.
Delaware, 438 U.S. 54 (1978).
Freddie Emerson Crockett was indicted on March 27, 2018 (ECF
1) on one count of possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The
Indictment followed the seizure on November 22, 2017, of two
electronic devices found in defendant's home, which
contained visual depictions of prepubescent females engaged
in sexually explicit conduct. The seizures were made pursuant
to a search warrant issued on November 21, 2017, by Judge V.
Michael Whelan of the Circuit Court for Cecil County,
Maryland. See ECF 19-1.
has filed a “Motion For A Franks Hearing” (ECF
19, the “Motion”), which is supported by several
exhibits. He challenges the veracity of the Affidavit in
support of the search warrant, submitted by Trooper First
Class (“TFC”) Frank Donald of the Maryland State
Police (“MSP”). According to defendant, the
Affidavit intentionally or recklessly contained a material
false statement as well as a material omission. The
government opposes the Motion (ECF 22) and has also submitted
exhibits. The defense replied. ECF 23.
Court held a hearing on August 16, 2018, at which argument
was presented. The evidence consisted of the parties'
exhibits appended to their submissions.
reasons that follow, I shall deny the Motion.
Standard For A Franks Hearing
an accused is not entitled to an evidentiary hearing to
challenge a facially valid search warrant affidavit.
United States v. Allen, 631 F.3d 164, 171 (4th Cir.
2011). When reviewing the issuing judge's probable cause
finding, consideration is ordinarily confined to the four
corners of the application documents. 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 (1978).
established that, under limited circumstances, an accused is
entitled to an evidentiary hearing concerning the veracity of
statements in an affidavit in support of a warrant. To obtain
an evidentiary hearing regarding the integrity of an
affidavit, however, a defendant must first make “a
substantial preliminary showing that a false statement [or
omission] knowingly and intentionally, or with reckless
disregard for the truth, was included [or omitted] by the
affiant in the warrant affidavit.” Franks, 438
U.S. at 155-56. This showing “must be more than
conclusory” and “must be accompanied by an offer
of proof, ” in order to overcome the “presumption
of [the warrant's] validity.” Franks, 438
U.S. at 171.
Franks Court established a two-prong test as to what
a criminal defendant must show when making such a challenge.
Id. at 155-56. The 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) (emphasis in
Lull); see also United States v. Colkley,
899 F.2d 297, 300 (4th Cir. 1990). The defendant has the
burden to establish both prongs of the test by a
preponderance of the evidence. Franks, 438 U.S. at
the first prong-the “intentionality” prong-the
defendant must make “a substantial preliminary showing
that a false statement [was made] knowingly and
intentionally, or with reckless disregard for the truth . . .
by the affiant in the warrant affidavit.” Id.
Under the second prong-the “materiality”
prong-the defendant must show that the false information is
necessary to the probable cause determination and, without
the false statement, the affidavit cannot support the finding
of probable cause. Id. at 156, 171-72; see also
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). However, if the excision of the
allegedly false statement would not change the
“probable cause calculus, ” the accused is not
entitled to a Franks hearing. United States v.
Cioni, 649 F.3d 276, 286 (4th Cir. 2011); 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). Put another way, the movant must demonstrate 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.
sure, “omissions can, in certain circumstances, give
rise to a Franks, hearing . . . .”;
Cioni, 649 F.3d at 286. But, “[m]erely
identifying factual omissions is insufficient.”
Clenney, 631 F.3d at 664. Indeed, “[o]mitted
information that is potentially relevant but not dispositive
is not enough to warrant a Franks hearing.”
Colkley, 899 F.2d at 301. Rather, “to be
material under Franks, an omission must do more than
potentially affect the probable cause determination: it must
be ‘necessary to the finding of probable
cause.'” Colkley, 899 F.2d at 301 (quoting
Franks, 438 U.S. at 156). So, “to obtain a
Franks hearing based on omissions, 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). Therefore, a
showing that an officer acted negligently, or that the
omission was merely an innocent mistake, is insufficient to
warrant suppression. Franks 438 U.S. at 171;
Miller v. Prince George's Cty., 475 F.3d 621,
627-28 (4th Cir. 2007); 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).
Fourth Circuit observed 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.'” (quoting Colkley,
899 F.2d at 300). And, “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.
requisite showing is made, “the warrant must be voided,
” Franks, 438 U.S. at 156, and the fruits and
evidence “gathered pursuant to it must be
excluded.” Colkley, 899 F.2d at 300. Moreover,
if a warrant violates Franks, it is not subject to
the good faith exception to the exclusionary rule under
United States v. Leon, 468 U.S. 897, 923 (1984).
See Doyle, 650 F.3d at 467.
noted, a misstatement in an affidavit is of no consequence if
the affidavit is redacted so as to excise the misstatement,
and it nonetheless establishes probable cause. See United
States v. Richardson, 607 F.3d 357, 369 (4th Cir. 2010).
Similarly, if the affidavit establishes probable cause
despite an alleged omission, the omission is of no moment.
Therefore, I pause to review briefly the concept of probable
Supreme Court said in Ornelas v. United States, 517
U.S. 690, 696 (1996), that probable cause “exist[s]
where the known facts and circumstances are sufficient to
warrant a [person] of reasonable prudence in the belief that
contraband or evidence of a crime will be found.”
Moreover, an assessment of probable cause must be based on
the totality of the relevant circumstances, and not on a
formulaic legal test. Illinois v. Gates, 462 U.S.
213, 230-31 (1983); Allen, 631 F.3d at 172.
Maryland v. Pringle, 540 U.S. 366 (2003), the
Supreme Court reiterated, id. At 370-71 (citations
and quotations marks omitted):
[T]he probable-cause standard is a practical, nontechnical
conception that deals with the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act. Probable cause is a
fluid concept- turning on the assessment of probabilities in
particular factual contexts-not readily, or even usefully,
reduced to a neat set of legal rules.
The probable-cause standard is incapable of precise
definition or quantification into percentages because it
deals with probabilities and depends on the totality of the
circumstances. We have stated, however, that [t]he substance
of all the definitions of probable cause is a reasonable
ground for belief of guilt, and that the belief of guilt must
be particularized with respect to the person to be searched
indicated, the concept of probable cause is not subject to
precise definition. Richardson, 607 F.3d at 369.
Rather, “[p]robable cause is a flexible standard that
simply requires ‘a reasonable ground for belief of
guilt' and ‘more than bare suspicion.'”
United States v. Ortiz, 669 F.3d 439, 444 (4th Cir.
2011) (quoting Brinegar v. United States, 338 U.S.
160, 175 (1949)). The “standard” of
“‘reasonable ground for belief of guilt'
requires less of a showing than does the formal
preponderance-of-the evidence standard.”
Ortiz, 669 F.3d at 444-45 (citing Gates,
462 U.S. at 235). Indeed, such “[f]inely-tuned
standards . . . useful in formal trials, have no place in the
magistrate's decision.” Gates, 462 U.S. at
a search warrant is construed “in a commonsense
manner” in order to serve the “significant
purpose of encouraging officers to obtain judicial approval
prior to conducting a search.” United States v.
Dargan, 738 F.3d 643, 647 (4th Cir. 2013). An
“overly stringent” construction of probable cause
is not required. Id. at 648.
next to review a handful of cases that are informative with
regard to a Franks issue.
Colkley, 899 F.2d 297, a bank robbery case,
defendant Johnson complained that the District Court should
have suppressed his post-arrest incriminating statements,
because the affidavit in support of the arrest warrant did
not recount that eyewitnesses failed to identify Johnson in a
photo spread. In addition, he complained because the agent
based the composite height description of the vault robber,
allegedly Johnson, on the testimony of only one witness,
disregarding other witnesses who described the vault robber
as shorter than the person depicted in the affidavit. On this
basis, the defendant requested and received a Franks
Fourth Circuit did not agree with the district court that a
Franks hearing was appropriate. In its view, the
defendant did not make the requisite preliminary showing that
the affiant intended to mislead the magistrate, and inclusion
of the omitted information would not have defeated probable
cause in any event. Id. at 300.
As to a
claim of omission, the Fourth Circuit was mindful of
“the realities of the warrant application
process.” Id. It stated: “An affiant
cannot be expected to include in an affidavit every piece of
information gathered in the course of an
investigation.” Id. Although a decision not to
include information is intentional, a mere intentional
omission is not within the scope of Franks, because
the requisite intent would be satisfied in virtually every
case. The Colkley Court stated:
“Franks clearly requires defendants to allege
more than ‘intentional' omission in this weak
sense.” Id. at 301. The Court continued:
“Franks protects against omissions that are
designed to mislead, or that are made in reckless disregard
of whether they would mislead, the magistrate . . . To obtain
a Franks hearing, the defendant must show that the
omission is the product of a ‘deliberate falsehood or
of reckless disregard for the truth.'” Id.
(quoting Franks, 438 U.S. at 171).
the Colkley Court recognized that “the
affirmative inclusion of false information in an affidavit is
more likely to present a question of impermissible official
conduct than a failure to include a matter that might be
construed as exculpatory.” 899 F.2d at 301. In its
view, the most that the record revealed was the agent's
“failure to include the photo spread information . . .
.” Id. However, the Court declined to infer
intent or recklessness from the mere fact of such an
omission. Id. As to that conduct, the Fourth Circuit
observed that the agent's “acts fell far short of
the level of flagrant police action Franks is
designed to prevent, and a hearing under that decision was
not required.” Id.
Fourth Circuit's view, to the extent that the photospread
information was exculpatory, it was not enough to defeat
probable cause when weighed against the content of the
affidavit. Id. at 302. The Court recognized that
“a requirement that all potentially exculpatory
evidence be included in an affidavit would severely disrupt
the warrant process. The rule would place an extraordinary
burden on law enforcement officers, who might have to follow
up and include in a warrant affidavit every hunch and detail
of an investigation in the futile attempt to prove the
negative proposition that no potentially exculpatory evidence
had been excluded.” Id. at 303. The Court
concluded: “In short, a rule requiring affiants to
disclose all potentially exculpatory information has nothing
to recommend it. Unless a defendant makes a strong
preliminary showing that the affiant excluded critical
information from the affidavit with the intent to mislead the
magistrate, the Fourth Amendment provides no basis for a
subsequent attack on the affidavit's integrity.”
case of United States v. Tate, 524 F.3d 449 (4th
Cir. 2008), reached a contrary result. There, the defendant
claimed that his trash had not been abandoned, and therefore
the search of it by the police was unconstitutional under
California v. Greenwood, 486 U.S. 35 (1988). As a
result, he challenged the warrant, which included the
contents of the search.
support Tate's request for a Franks hearing, he
proffered, inter alia, a letter from the Division
Chief of the Baltimore Department of Public Works' Bureau
of Solid Waste as to when the defendant's trash
collection occurred; two affidavits, one from a neighbor and
another from a defense investigator concerning the trash
pickup and where Tate's garbage was stored; photographs
of the residence showing a locked gate and the area where the
trash was kept; and a copy of another search warrant
affidavit two months earlier in an unrelated case, in which
the same officer stated that the trash bags were easily
accessible in language quite similar to what was in the
affidavit at issue. The district judge denied the request for
a Franks hearing.
Fourth Circuit concluded that Tate had made the requisite
preliminary showing that the law enforcement agent had
knowingly and intentionally, or with reckless disregard for
the truth, omitted a material statement in the affidavit in
support of the warrant. Id. at 457. The Court
focused on the agent's omission of facts about the
location of trash that had been searched, the contents of
which undergirded the affidavit.
Fourth Circuit reasoned, 524 F.3d at 456: “If
Tate's facts are correct, the affidavit omitted the
important details . . . that the trash had not been
abandoned, and that the trash bags were seized in violation
of Tate's reasonable expectation of privacy.”
According to the Court, the facts, as proffered, tended to
show that the agent “may have violated Tate's
reasonable expectation of privacy because the trash was not
out at the curb for collection on the date of Agent
Manner's search but rather in a container near the rear
steps of the home.” Id.
the Court determined “that if Tate's facts are
true, the inclusion of the allegedly omitted information -
that Agent Manners illegally searched Tate's trash -
would have defeated probable cause. If the trash
investigation was conducted illegally, the facts derived from
it would have to be stricken from the affidavit.”
Id. at 457. And, said the Tate Court:
“Without the facts drawn from the trash investigation,
the remaining contents of the affidavit would not have
supported a finding of probable cause.” Id.
these principles in mind, I turn to review the factual
background in this case.
investigation that led to the issuance of the search warrant
was based on three Cyber Tipline reports sent to the Maryland
State Police in October 2017, by the National Center for
Missing and Exploited Children (“NCMEC”). The
reports indicated that Yahoo! Inc. (“Yahoo”), an
electronic service provider, had detected the transmission of
particular, on October 17, 2017, a little more than a month
prior to the issuance of the search warrant at issue, the MSP
received Cyber Tipline Report 24709693 from NCMEC. ECF 19-2
(“First Report”). NCMEC indicated that on October
4, 2017, Yahoo reported that on October 20, 2016, 133 files
of suspected child pornography were uploaded onto its
networking service “Flickr, ” a free image and
video hosting website. ECF 19-2 at 1, 6. Yahoo provided the
following information about the account user, id. at
Name: Freddie c
Phone: 1 4439078236
Email Address: email@example.com Alternate Email:
to NCMEC, the images were uploaded from Internet Protocol
(“IP”) address 184.108.40.206. Id. at 6,
31. And, Yahoo indicated that the IP address was assigned to
a Comcast internet subscriber located near Elkton, Maryland.
Id. at 31.
also provided additional information ascertained through its
investigation. For example, a Google search for
“firstname.lastname@example.org” revealed a post on
August 25, 2010, on an internet forum titled “AgTalk,
” in which the user, “Fredneck, ”
identified himself as Freddie Crockett; stated that he lived
in Rising Sun, Maryland; his family had a dairy farm in
Earleville, Maryland; and his email address was
“Lordshackisac@yahoo.com.” ECF 19-2 at 33. He
signed off as “Fred Crockett jr (fredneck).”
NCMEC disclosed a possible criminal record for a white male
named Freddie Emerson Crockett, with a date of birth of
August 2, 1978, and an address of 43 Peddlers Lane,
Earleville, Maryland. He was listed on the Maryland Sex
Offender Registry (“SOR”) in connection with
charges relating to visual surveillance with prurient intent.
ECF 19-2 at 34. His registration date was
also searched the Maryland SOR, which revealed that on
December 1, 2010, Freddie Emerson Crockett was convicted in
Cecil County, Maryland on two counts of visual surveillance
with prurient intent, in violation of § 3-902 of the
Criminal Law Article of the Maryland Code. Id. at
36. Crockett was required to register as a Tier I sex
offender. Id. The SOR further revealed that
Crockett's date of birth is August 2, 1978. Id.
And, according to the Cecil County Sheriff's Office, he
was in compliance with his sex offender registration
obligations. The SOR also indicated that Crockett was
associated with a gray Jeep bearing Maryland license plate
number 16289M8. Id.
the First Report indicated that on June 11, 2015, Crockett
changed his primary residence to 43 Peddlers Lane,
Earleville, Maryland. Id.
October 17, 2017, NCMEC provided MSP with a Supplemental
Cyber Tipline Report (“Supplemental Report”), as
part of Report No. 24961893, i.e., The First Report.
ECF 19-2 at 45-49. The Supplemental Report indicated that on
October 16, 2017, NCMEC had received additional information
from Yahoo's E-Crime Investigations Team
(“ECIT”) regarding the investigation it conducted
into the user identified in the First Report.
to ECIT, the Yahoo account, lordshackisac, was linked to nine
other Yahoo accounts, all of which were identified in the
Supplemental Report. Id. at 45. In addition, all of
the Yahoo accounts shared a common telephone number. From
March 19, 2012 until May 23, 2017, the number was
443-907-8235. The number was changed to 443-907-8236 as of
May 23, 2017. Id. Notably, at one place in the
Supplemental Report, the new phone number was identified as
“443-907-82356.” The Supplemental Report also
stated that the user is a registered sex offender who
“appears to reside” in Earleville, Maryland. ECF
19-2 at 45.
Supplemental Report advised that the Flickr account
lordshackisac is associated with the Yahoo account
email@example.com, and the name on the Yahoo account is
“Mr. Freddie c.” ECF 19-2 at 45. That Yahoo
account was created on March 3, 2004, from AOL IP address
220.127.116.11. Id. As to the
“lordshackisac” Yahoo account, ECIT indicated
that the user's gender is male; the user's date of
birth is August 2, 1978; and the user-provided location is
“Earleville, MD, United States, 21919.”
Id. at 46. ECIT also reported that the email account
of firstname.lastname@example.org is an alternate email address for
both the “fcrockett33” Yahoo account and the
lordshackisac Yahoo account. Id. at 45.
last successful login to the “lordshackisac”
Yahoo account occurred on May 23, 2017, from Comcast IP
address 2601:145:c400:5bac::707 (sometimes referred to as the
“2601 IP address”), located in or around Elkton,
Maryland. Id. at 46. Of relevance here, on October
3, 2017, Yahoo deactivated the “lordshackisac”
Yahoo account for possession of child sexual abuse imagery
(“CSAI”). ECF 19-2 at 46; ECF 22-1 at 3.
noted, the lordshackisac Yahoo account was associated with
several other Yahoo accounts. They were identified as