The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Defendant Eddie P. Burroughs is charged by indictment with one count of unlawful possession with intent to distribute 280 grams or more of cocaine base, one count of unlawful possession with intent to distribute cocaine, and one count of unlawful possession with intent to distribute marijuana. The charges arise from narcotics recovered from the Defendant's purported residence pursuant to a search warrant executed by the District of Columbia Metropolitan Police Department in December 2011. Presently before the Court is the Defendant's  Motion to Suppress Tangible Evidence & for Hearing Pursuant to Franks v. Delaware. Defendant's motion alleges three deficiencies in the search: (1) material false statements and omissions in the affidavit submitted in support of the search warrant application; (2) a lack of probable cause from the face of the affidavit; and (3) misconduct relating to the search warrant return. Upon consideration of the parties' pleadings*fn1 and the record presented for purposes of this motion, the Court finds that (1) Defendant failed to make the substantial showing of material false statements and omissions required to obtain a Franks hearing; (2) the affidavit stated sufficient facts from which the issuing judge could find probable cause; (3) even if the affidavit lacked probable cause, the evidence recovered should not be suppressed; and (4) none of the purported issues with the search warrant return require suppression of the physical evidence seized during the search.
The charges against the Defendant arise out of the investigation of two other offenses with which the Defendant has not been charged. The facts that follow are undisputed unless otherwise noted. The Court shall also briefly address the procedures associated with search warrants in the District of Columbia.
On November 26, 2011, at approximately 12:15 AM, two black males allegedly robbed Complainants "1" and "2" at gun point. Def. Ex. 1 (Search Warrant) at 1. The suspects took $374 in United States currency, a Virgin Mobile cellular telephone, and a black wallet containing personal papers, receipts, and a white access card from Complainant 1. Id. From Complainant 2, the suspects took an iPod Shuffle and a Samsung Transformer cellular telephone. Id.
According to the MPD arrest report of the Defendant, at approximately 1:00 AM on November 26, 2011, MPD Officer J. Wade spotted a white Dodge Charger in Southeast Washington, D.C., which Officer Wade believed matched the "lookout" for a vehicle involved in an armed carjacking in Prince Georges County earlier that evening. Gov't Ex. A, (11/26/11 Arrest Report), at 1, 2. Officer Wade engaged the vehicle and, with the aid of the MPD air support unit, pursued the vehicle after it began to flee. Id. at 2. Officer Wade followed the vehicle as it drove on and off the interstate, before finally stopping at 3425 5th Street, Southeast, Washington, D.C. Id. Once the vehicle stopped, four individuals exited the vehicle and fled on foot. Id. With the assistance of the air support unit, officers apprehended the Defendant and two other individuals at approximately 1:35 AM. Id. The air support unit noted that prior to the suspects exiting the Dodge Charger, there were no individuals in the area in which the Defendant and other suspects were apprehended. Id.
Upon his arrest, the Defendant was transported to the Seventh District Station and searched. Detective James Francis removed approximately $740 in United States currency, receipts, and a black wallet containing a white plastic card from Defendant's pants pockets. Def. Ex. 1 at 2. The Defendant was charged with unauthorized use of a vehicle ("UUV"), but the charge was dismissed for lack of probable cause on November 29, 2011, and Defendant was released. See District of Columbia v. Burroughs, 2011 CF2 022837 (D.C. Superior Ct. filed Nov. 26, 2011). On December 2, 2011, Detective Francis showed the wallet and receipts to one of the complainants, who identified the items as those taken from the complainant during the robbery. Def. Ex. 1 at 3. On the basis of this identification, Detective Francis executed an affidavit in support of a search warrant application for 3400 13th Street, Southeast, Apartment 301, Washington, D.C., which the Defendant identified as his residence when arrested on the UUV charge. Id. The property manager for the residence also confirmed that the Defendant resided at the apartment. Id. A District of Columbia Superior Court ("Superior Court") judge authorized the search warrant on December 3, 2011. Id.
MPD officers executed the search warrant on December 5, 2011. Def. Ex. 1 at 3. In addition to mail addressed to the Defendant, officers allegedly recovered 9.5 pounds of marijuana, 114 grams of powder cocaine, over two kilograms of crack cocaine, $9,900 in United States currency, scales, and other drug trafficking paraphernalia. Def.'s Ex. 2 (Signed Search Warrant Return). The Grand Jury returned an indictment against the Defendant on February 7, 2012, charging Defendant with one count of unlawful possession with intent to distribute 280 grams or more of cocaine base in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), one count of unlawful possession with intent to distribute cocaine in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and one count of unlawful possession with intent to distribute marijuana in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(D).
B.District of Columbia Search Warrant Procedure When an authorized
individual submits an affidavit and search warrant application to a
Superior Court judge, if the judge authorizes the warrant, the
Superior Court will scan the affidavit and search warrant, and return
the originals to the affiant. Gov't Suppl. Sur-Reply ¶ 1. Upon
executing the search warrant, officers are required to leave a copy of
the search warrant and an inventory of the property taken must be
given to the owner if present, or an occupant. D.C. SCR-Crim. R.
41(e). If no one is present at the time the search warrant is
executed, officers must post a copy "of the warrant and of the return
on the place" that was searched. Id. "A copy of the warrant shall be
filed with the Court on the next court day after its execution,
together with a copy of the return." D.C. SCR-Crim. R. 41(f); accord
D.C. Code § 23-524(d). The affiant takes the original affidavit,
search warrant, and completed return to the relevant Superior Court
Judge, who then signs the return. Def.'s Final Reply ¶ 3; Gov't Suppl.
Sur-reply ¶ 2; Def. Ex. 3 (Signed Search Warrant Return). The judge
retains the original documents and provides them to the Superior Court
Special Proceedings Branch. Def.'s Final Reply ¶ 3; Gov't Suppl.
3. The Special Proceedings Branch scans the affidavit, search
warrant, and signed return into an
electronic database, then shreds the original documents.*fn2
Gov't Suppl. Sur-reply ¶ 3. Copies of the scanned version are
provided to the affiant and the Narcotics Branch of the United States
Attorney's Office. Def.'s Final Reply ¶ 4.
The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. amend. IV. "To demonstrate probable cause to search premises, an affidavit must set forth facts sufficient to induce a reasonably prudent person to believe that a search thereof will uncover evidence of a crime." United States v. Laws, 808 F.2d 92, 94 (D.C. Cir. 1986). When police obtain evidence by way of an unlawful search, the exclusionary rule may require exclusion of that evidence in some circumstances." United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012). However, as the D.C. Circuit explained, [T]he exclusionary rule has limited force in cases involving a search with a search warrant. In particular, reviewing courts may not exclude evidence "when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope." United States v. Leon, 468 U.S. 897, 920 (1984). The reason is evident: "In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient." Id. at 921. The "exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges." Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984) (citation omitted).
Id. at 418-19. Courts have recognized three exceptions to the good faith principle articulated in Leon. Specifically, exclusion may be appropriate regardless of the good faith of the officer executing the warrant if (1) "the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth"; (2) "the issuing magistrate wholly abandoned [her] judicial role"; or (3) the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923 (internal quotation marks and citations omitted); e.g., Glover, 681 F.3d at 419; United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008).
In this case, the Defendant invokes the first Leon exception, as originally set forth in Franks v. Delaware, 438 U.S. 154 (1978). Pursuant to Franks, if the defendant makes a "substantial showing" that false statements were included in or material facts omitted from a search warrant affidavit, the Court must hold an evidentiary hearing. United States v. Maynard, 615 F.3d 544, 550-51 (D.C Cir. 2010). "A movant seeking to obtain a Franks hearing must show that (1) the affidavit contained false statements; (2) the statements were material to the issue of probable cause; and (3) the false statements were made knowingly and intentionally, or with reckless disregard for the truth." United States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010) (internal quotation marks and citations omitted). "For an omission to meet the Franks standard, the officer must at least have knowingly and intentionally (or with reckless disregard) omitted a fact that would have defeated probable cause." United States v. Glover, 681 F.3d 411, 419 (D.C. Cir. 2012). "An affidavit offered in support of a search warrant enjoys a 'presumption of validity.'" Maynard, 615 F.3d at 550 (quoting Franks, 438 U.S. at 171). In order to overcome that presumption and obtain an evidentiary hearing, the Defendant must make a "substantial showing" that is "'more than conclusory' and 'accompanied by an offer of proof.'" Id. (quoting United States v. Gaston, 357 F.3d 77, 80 (D.C. Cir. 2004)).
The Defendant seeks to suppress the search warrant and seized materials on three grounds: (1) Detective Francis made material false statements and omitted material information from his search warrant affidavit; (2) the search warrant affidavit did not establish probable cause; and (3) Detective Francis engaged in misconduct relating to the search warrant return. None of these arguments are persuasive. First, the Defendant failed to show that any statements or omissions in the affidavit were in fact false, material, or made with reckless disregard for the truth. Therefore, a Franks hearing is not necessary. Second, the affidavit on its face provided sufficient facts from which the issuing judge could find probable cause. Third, any purported delay in returning the search warrant amounts to only a ministerial error. Fourth, Detective Francis did not "alter" the search warrant before returning it to the Court; he merely added the actual weight of narcotics and amount of currency purportedly seized during the search. Thus, the search warrant return does not provide a basis for an evidentiary hearing or suppression of the fruits of the search.
A.Defendant Failed to Make a Substantial Showing Warranting a Franks Hearing Defendant contends the Court should hold an evidentiary hearing because Detective Francis made false statements and omitted material information from the affidavit. As explained below, the Defendant failed to show that the purported false statements were false, material to the finding of probable cause, or made with reckless disregard for the truth requiring the Court to hold a Franks hearing. ...