June 26, 1992
JOSEPH E. DAILEY, APPELLANT
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Fred B. Ugast, Trial Judge).
Before Steadman and Wagner, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge : Appellant appeals from his conviction in Superior Court of the District of Columbia of two counts of voluntary manslaughter while armed. D.C. Code §§ 22-2405, -3201-02 (1989 Repl.). We find no error in the trial court's ruling that appellant failed to establish by a preponderance of the evidence that a detective acted with intent to mislead the court, or with reckless disregard for the truth in omitting a witness' age from an affidavit in support of an arrest warrant. Accordingly, we hold there was no error in the trial court's denial of the motion to suppress appellant's confession or the testimony of the eyewitness as illegal fruits of an invalid warrant affidavit.
In the early morning of May 24, 1982, a woman's body [herienafter S.J.] was found in the rear of a Giant Food Store in Northwest Washington with multiple stab wounds. At S.J.'s apartment, her mother [hereinafter J.J.] was discovered, also dead of stab wounds, with a long knife protruding from the back of her neck. The police also observed a trail of blood leading out of the apartment to the rear of the building and in the direction of S.J.'s body. During Detective John Clark's initial investigation of the apartment, he found two notebooks which referred to "Joe" and "Mr. Dailey," respectively. A note in one of the notebooks suggested some animosity between J.J. and "Joe." Then, in the course of notifying the decedents' next-of-kin, Detective Clark learned that S.J.'s boyfriend of nearly two years was Joe Dailey, the appellant.
In the apartment, the police also found a three-and-one-half year-old child, S.J.'s daughter, unharmed, who immediately began repeating to them, to her relatives, and to all who would listen, that "Joe cut Mama!" Although the child was emotionally upset during the taped interview and had some difficulty following some of the questions, she continued to state that "Joe cut Mama." Detective Clark also learned from relatives that the child had lived with her mother since birth, and he assumed that the girl was acquainted with Joe Dailey for at least one year. Furthermore, when the girl was shown a photograph of Joe Dailey, she said that he was "Joe" who "cut Mama."
Relying on this evidence, the detective believed that S.J. had been stabbed in the apartment while her young daughter watched, then dragged to the parking lot. That same afternoon, S.J.'s new boyfriend gave a statement to the police which suggested a possible motive and opportunity for the murder of S.J. by Joe Dailey, her apparently jilted boyfriend.
Later that same day, Detective Clark prepared an affidavit in support of a warrant for the arrest of appellant for the death of S.J., which was signed by a Superior Court Judge. *fn1 After appellant was arrested, he initially gave the police different versions of his whereabouts at the time of the stabbing of S.J. and her mother, J.J... Later, after stating to the police, "I know you wouldn't charge me unless you found a witness," and when the police said nothing, appellant mentioned the name of a male eyewitness to the homicides. Thereafter, appellant confessed in writing that he stabbed both victims. A grand jury indicted appellant on four counts: first-degree (premeditated) murder of S.J. while armed, (D.C. Code §§ 22-2401, -3202 (1989 Repl.)); first-degree burglary while armed, (id. §§ 22-1801(a), -3202); first-degree (felony) murder of J.J. while armed, (id. §§ 22-2401, -3202); and first-degree (premeditated) murder of J.J. while armed, (id. §§ 22-2401, -3202).
The defense moved to suppress Mr. Dailey's written confession and the testimony of the male witness to the murders on the ground that the omission of the child's age from the affidavit was a violation of Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667 (1978). The trial court held an extensive pretrial Franks evidentiary hearing, but ruled that the defendant did not meet the Franks test by a preponderance of the evidence. A jury found appellant not guilty on all four charged counts, but guilty of the lesser-included offense of voluntary manslaughter while armed of both S.J. and J.J. Appellant appeals the trial court's ruling that appellant failed to establish by a preponderance of the evidence that he was entitled to suppression of his written confession and the testimony of the eyewitness pursuant to Franks.
The Supreme Court in Franks v. Delaware, (supra) , 438 U.S. at 154, established a test for reviewing an allegation that a warrant was based on a false or misleading affidavit. In In re Y.G., 399 A.2d 65, 68 (D.C. 1979), we adopted the Franks guidelines for determining whether an evidentiary hearing is required to resolve whether evidence should be suppressed. Because there is "a presumption of validity with respect to the affidavit supporting the search warrant . . . the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine." Id. at 68 (quoting Franks, (supra) , 438 U.S. at 171). To mandate an evidentiary hearing, there must be "allegations of deliberate falsehood or reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Allegations of negligence or innocent mistake are insufficient." Id. (quoting Franks, (supra) , 438 U.S. at 171). Finally,
if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth Amendment, to his [or her] hearing.
Id. (quoting Franks, (supra) , 438 U.S. at 171-72).
In applying the Franks test, some reviewing courts give the challenged affidavit a "'sensible pragmatic reading, one that takes account of the pressure of time and the typical level of verbal skills in laymen police officers.'" United States v. Richardson, 274 U.S. App. D.C. 58, 60-61, 861 F.2d 291, 293-94 (1988) (quoting United States v. Watts, 176 U.S. App. D.C. 314, 318, 540 F.2d 1093, 1097 (1976)).
Of the several courts that have adapted Franks to a situation involving omissions from an affidavit, several have required the defendant to show that (1) "the police omitted facts with the intent" to mislead, "or in reckless disregard" of the known facts, and (2) "that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause." United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986); see also Ogden v. District of Columbia, 676 F. Supp. 324, 327 (D.D.C. 1987) (allegations of omissions are to be read "as if the allegedly relevant material were included to determine whether probable cause would have been undetermined"); United States v. Williams, 737 F.2d 594, 604 (7th Cir. 1984) ("rationale of Franks applied to omissions"); United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980) ("allegations of material omissions to be treated essentially similarly to claims of material misstatements").
Although recognizing omissions as part of the Franks test, some courts have held that "omissions are not subject to the same high level of scrutiny as misstatements." United States v. Rivera, 750 F. Supp. 614, 617 (S.D.N.Y. 1990). The court in United States v. Colkley, 8299 F.2d 297, 301 (4th Cir. 1990), explained 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." *fn2 The court was concerned with the potential for "endless rounds of Franks hearings to contest facially sufficient warrants." *fn3 Id.
Even though the defendant convinces the Judge that an evidentiary hearing is warranted, the defendant still may not prevail at that hearing. Franks, (supra) , 438 U.S. at 172. To challenge the affidavit successfully, the defendant must meet by a preponderance of the evidence, a four prong test: (1) the affidavit contained false statements, (2) the false statements were made knowingly and intentionally or with a reckless disregard for the truth, *fn4 (3) the false statements were material to the issue of probable cause, and (4) without the false statements, the affidavit is insufficient to establish probable cause. Franks, (supra) , 438 U.S. at 155 56. If the defendant meets all four prongs, the warrant must be voided and its fruits suppressed. Id. at 156.
In Richardson, (supra) , 274 U.S. App. D.C. at 61, 861 F.2d at 294, the court held that even if the inaccurate statement in the affidavit was material to the issue of probable cause, the evidence should not be suppressed because of the Leon good faith exception, *fn5 i.e., where the affidavit was made in good faith, the warrant was issued by a detached and neutral magistrate, and the warrant was reasonably relied on in good faith by the police officers. However, the court notes that the Leon good faith exception would logically not apply if the officer was found to have violated the second prong of the Franks test, i.e., the officer was reckless. Id. at 61, n.5 (citing Leon, (supra) note 5, 468 U.S. at 897). See also Martin, (supra) , 615 F.2d. at 328-29.
Following the present judicial trend, this court deems the Franks test to include omissions from the affidavit. In adapting the language in Franks to apply sensibly to the omissions context: (1) during a preliminary inquiry, there must be allegations of deliberate deceit or reckless disregard for the truth, and those allegations must be accompanied by an offer of proof by the defendant; and (2) if these requirements are met, and if the affidavit, supplemented with the omitted information would have defeated probable cause, the defendant is entitled to a Franks hearing. Whether the defendant prevails at the hearing is, still, as with falsified inclusions in the original, Franks, (supra) , 438 U.S. at 172, the subject of a second inquiry.
During the preliminary inquiry in the instant case to determine the necessity of a Franks evidentiary hearing, it is unclear whether appellant actually alleged deceit or reckless disregard for the truth, accompanied by an adequate offer of proof. In short, in order to establish his right to a Franks hearing, appellant was obliged to allege and offer proof that the police omitted the child's age either in a deliberate attempt to deceive the Judge, or that the officer prepared the affidavit with reckless disregard for the truth. And, similarly, appellant also had to show that the inclusion of the child's age in the affidavit would defeat probable cause. Nevertheless, it does not appear that the trial Judge focused on this preliminary inquiry before he, out of an abundance of caution, moved on to the second stage of the Franks test and conducted an extensive evidentiary hearing.
On appeal, appellant urges this court to adopt a unique application of the Franks test where the court would consider only what a reasonable person would have thought, not what the officer reasonably believed in light of all the evidence available to him or her. Appellant's strict objective test would circumvent the Franks good faith aspect of its test where "a challenge to a warrant's veracity must be permitted . . . which surely takes the affiant's good faith as its premise." Franks, supra, 438 U.S. at 164 (emphasis added). His test would impose limitations on the trial court in its determination of the second prong of the Franks test, i.e., whether there was "deliberate falsehood or reckless disregard for the truth" by the affiant. Id. at 171. Such a test is not supported by Franks nor the case law subsequent to Franks where the courts make a modified objective determination as to whether the officer's conduct is reasonable under the circumstances. Thus, we reject appellant's test, creative though it may be.
On the contrary, we agree, as in Richardson, supra, 274 U.S. App. D.C. at 60-61, 861 F.2d at 293-94, that the burden is on the defendant to show that the affiant behaved in bad faith or in reckless disregard for the truth. *fn6 Franks, supra, 438 U.S. at 164-65. The defendant must first establish by a preponderance of the evidence that the officer intentionally tried to deceive the magistrate or acted with reckless disregard for the truth by including or omitting information from the affidavit. Accordingly, if the defendant does not meet this burden, then the trial court need not reach the materiality of the omission or inclusion of the information as to the issue of probable cause. That is, integral to the test is a good faith consideration as to whether the affiant, in the totality of the circumstances, tried to deceive the Judge intentionally or manifested a reckless disregard for the truth. *fn7
The trial court ruled, in the instant case, that the defendant "failed to establish by a preponderance of the evidence that the Detective in his affidavit in support of the arrest warrant acted with an intent to mislead the Court or with a reckless disregard for the truth so as to invalidate the warrant." In making this determination, the trial court considered several factors, *fn8 which taken together, "created a reasonable basis upon which the Detective acted in seeking an arrest warrant for the Defendant."
The court found in this instance that the detective, in excluding the age of the child witness, was following his customary practice, *fn9 and had no intent to deceive the Judge, and his interpretation of the information he had at that time was not made with reckless disregard for the truth. *fn10
We conclude that, at this point, the trial court's determination was complete. As in Richardson, (supra) , 274 U.S. App. D.C. at 60-61, 861 F.2d at 293-94, the trial court's determination that appellant had not shown, by a preponderance of the evidence, that the officer had acted recklessly or in bad faith, ended the inquiry. We find no error in the trial court's ruling, and, accordingly, we hold that there was no error in the trial court's denial of the motion to suppress appellant's confession or the testimony of the eyewitness as illegal fruits of an invalid warrant affidavit. Although unnecessary to its analysis, the trial court, nevertheless, continued to the final prong of the Franks test, and ruled that under the totality of the circumstances, had the witness' age been included in the affidavit, the existence of probable cause would not have been undercut nor would the validity of the warrant have been vitiated. Because of our view of the required analysis, we need not reach the correctness of this inquiry.
We find no error in the trial Judge's denial, after a hearing on the matter, of appellant's motion to suppress appellant's confession or the testimony of the prosecution's main witness.