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United States v. Crockett

United States District Court, D. Maryland

October 24, 2018



          Ellen L. Hollander United States District Judge

         In this 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).

         Defendant 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.[1]

         Defendant 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.[2] The defense replied. ECF 23.

         The Court held a hearing on August 16, 2018, at which argument was presented. The evidence consisted of the parties' exhibits appended to their submissions.[3]

         For the reasons that follow, I shall deny the Motion.

         I. Standard For A Franks Hearing

         Generally, 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).

         Franks 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.

         The 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 156.

         Under 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.

         To be 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).

         The 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.

         If the 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.

         As 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 cause.

         The 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.

         In 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 or seized[.]

         As 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 235.

         Notably, 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.

         I turn next to review a handful of cases that are informative with regard to a Franks issue.

         In 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 hearing.

         The 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).

         Thus, 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.

         In the 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.” Id.

         The 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.

         To 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.

         The 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.

         The 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.

         Moreover, 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.

         With these principles in mind, I turn to review the factual background in this case.

         II. Factual Summary

         A. Overview

         The 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 child pornography.[4]

         In 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 6:

Name: Freddie c
Phone: 1 4439078236
Email Address: Alternate Email:

         According to NCMEC, the images were uploaded from Internet Protocol (“IP”) address 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.

         NCMEC also provided additional information ascertained through its investigation. For example, a Google search for “” 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 “” ECF 19-2 at 33. He signed off as “Fred Crockett jr (fredneck).” Id.

         Further, 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 “06/12/2017.” Id.

         NCMEC 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.

         Notably, the First Report indicated that on June 11, 2015, Crockett changed his primary residence to 43 Peddlers Lane, Earleville, Maryland. Id.

         Also on 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.

         According 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.”[5] 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.

         The Supplemental Report advised that the Flickr account lordshackisac is associated with the Yahoo account, 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 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 is an alternate email address for both the “fcrockett33” Yahoo account and the lordshackisac Yahoo account. Id. at 45.

         The 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.

         As noted, the lordshackisac Yahoo account was associated with several other Yahoo accounts. They were identified as follows, id.:

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