899 F.

2d 297

UNITED STATES of America, Plaintiff-Appellee,

v.
James Edward COLKLEY, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jamison Henry JOHNSON, Defendant-Appellant.
Nos. 89-5050, 89-5051.

United States Court of Appeals,

Fourth Circuit.
Argued Dec. 8, 1989.
Decided March 27, 1990.

Beth Mina Farber (argued), Asst. Federal Public Defender, Baltimore,

Md., for defendants-appellants.
Geoffrey R. Garinther (argued), Asst. U.S. Atty., Baltimore, Md., for
plaintiff-appellee.
Fred Warren Bennett, Federal Public Defender, Larry A. Nathans, Asst.
Federal Public Defender, Harold I. Glaser, Baltimore, Md., on brief, for
defendants-appellants.
Breckinridge L. Willcox, U.S. Atty., Gregg L. Bernstein, Asst. U.S. Atty.,
Baltimore, Md., on brief, for plaintiff-appellee.
Before WIDENER and WILKINSON, Circuit Judges, and SPENCER,
United States District Judge for the Eastern District of Virginia, sitting by
designation.
WILKINSON, Circuit Judge:

James Edward Colkley and Jamison Henry Johnson appeal their convictions for
bank robbery, 18 U.S.C. Sec. 2113(a), bank larceny, 18 U.S.C. Sec. 2113(b),
and assault during a bank robbery, 18 U.S.C. Sec. 2113(d). Johnson contends
that the district court should have suppressed incriminating post-arrest

statements made by him because the affidavit submitted in support of the

warrant for his arrest did not contain certain potentially exculpatory information
known to the affiant. In addition, both appellants maintain that the trial judge
improperly excused a jury member during trial and impermissibly admitted
certain evidence.
2

We hold that the Johnson affidavit was not tainted by the affiant's failure to
include within it all potentially exculpatory information. Johnson's
incriminating statements were properly admitted because Johnson made no
showing that the affiant intended to mislead the magistrate by omitting
information, and because the warrant with the omitted information would in
any event have been supported by probable cause under the "totality of the
circumstances" test articulated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983). Finding no merit in appellants' remaining claims,
we affirm the judgment of the district court.

I.
3

On May 5, 1988, two armed men robbed the Baltimore Federal Financial Bank
in Pikesville, Maryland. One of the robbers held up the lobby tellers, while the
other robber took money from the bank vault. Bank officials reported to police
authorities that the robbers stole $71,442, and that their take also included 32
twenty-dollar bait bills and several malfunctioning dye packs.

Based on bank surveillance photographs and interviews with eyewitnesses, the

F.B.I. developed composite descriptions of the two robbers. Appellant Colkley
became a suspect based on one of the composite descriptions and his past bank
robbery activity.

On May 23, an anonymous informant telephoned the F.B.I. to report that

appellants Johnson and Colkley had told him that they recently robbed a bank
in Baltimore County. The informant's account of this robbery was remarkably
consistent with the robbery at Baltimore Federal Financial. The informant
stated that Johnson stole money from the vault while Colkley held up the lobby
tellers. He also said that the robbers had taken a dye pack that failed to operate.
Finally, the informant reported that a reliable associate had seen over $60,000
in Johnson's house during May 1988.

Based on this information, agents began surveillance of Johnson's home in June

1988. They observed two cars parked outside Johnson's home which they
determined belonged to Johnson's brother and Colkley. An investigation

revealed that Colkley purchased his car the day after the bank robbery for
$4,780 in cash which he had removed from a brown envelope containing more
cash. The agents also learned that Johnson's brother, accompanied by Johnson,
had purchased a car four days after the robbery for $2,551.50 in cash. In
addition, on June 14 an agent conducting surveillance observed Johnson
purchase a van for $3,100 in cash. An examination of the cash used in this
purchase disclosed one of the bait bills taken in the robbery.
7

In the meantime, investigators prepared two identification photospreads

containing six pictures each. Colkley's photograph was in one photospread,
Johnson's in the other. Two eyewitnesses positively identified Colkley as the
lobby robber, and two others said he "looked similar" to the lobby robber. None
of the six eyewitnesses were able to identify Johnson, however; three identified
other individuals in the Johnson photospread as similar to the vault robber, and
three could identify no one.

On June 23, 1988, a United States Magistrate issued separate warrants for the
arrest of Colkley and Johnson. The warrant applications were accompanied by
affidavits executed by Special Agent Thomas Moore of the F.B.I. Both
affidavits contained eyewitness descriptions of the robbery, composite
descriptions of the two suspects, an account of the surveillance of Johnson's
home and the information gained by investigating the automobile purchases,
and a summary of the photospread identifications of Colkley. In addition, the
Johnson affidavit included information learned from the anonymous informant.
The Johnson affidavit did not recount that the eyewitnesses failed to identify
Johnson in the photospread.

Colkley and Johnson were arrested separately. Police arrested Colkley in the
car he purchased the day after the robbery. An inventory search of the car
revealed two handguns which were later introduced at trial. Johnson was
arrested at his residence. After initially disavowing knowledge of the bank
robbery, he made numerous incriminating statements concerning his
involvement in it. In response to an agent's question about the location of the
robbery money, he replied "I had my fun, I am broke." Confronted with
evidence of the bait bill discovered during his purchase of the van, he stated,
"the van got me." Finally, he told an agent, "when I get out of jail I would have
learned, and I won't make the same mistake again." A subsequent search of
Johnson's home revealed a .38 caliber bullet that was admitted at trial.

10

Prior to trial, Johnson challenged the affidavit used in support of his arrest
warrant. He claimed that the affidavit was defective because it failed to note
that numerous witnesses did not identify him in a photographic spread, and

because agent Moore based the composite height description of the vault
robber--allegedly Johnson--on the testimony of only one witness and in
disregard of the testimony of other witnesses who claimed that the vault robber
was shorter. Based on these allegations, Johnson requested and received an
evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57
L.Ed.2d 667 (1978), to determine if agent Moore had deliberately or with
reckless disregard for the truth excluded material information. After the Franks
hearing, the district court ruled that even with the inclusion of the omitted
information on the Johnson photographic spread, probable cause existed for the
issuance of the arrest warrant. The court also found that agent Moore had not
intentionally misrepresented Johnson's height and that, in any event,
discrepancies in height descriptions were common and in this case were
immaterial.
11

On November 16, 1988, a jury returned guilty verdicts against both Colkley
and Johnson for bank robbery, bank larceny, and assault during a bank robbery.
18 U.S.C. Sec. 2113(a), (b), & (d).

12

Colkley and Johnson appeal their convictions.

II.
13

We first address the district court's refusal to exclude Johnson's incriminating

post-arrest statements. We agree with the district court that the omitted
information in the affidavit did not require suppression of these statements. We
reach this conclusion by different means, however, and hold that the district
court need not have held a Franks hearing on the integrity of the affidavit
because there was no substantial preliminary showing that the affiant intended
to mislead the magistrate, and because inclusion of the omitted information
would not have defeated probable cause in any event.

A.
14

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),
the Supreme Court held that in certain narrowly defined circumstances a
defendant can attack a facially sufficient affidavit. The Franks Court recognized
a strong "presumption of validity with respect to the affidavit supporting the
search warrant," 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of
"limited scope," id. at 167, 98 S.Ct. at 2682. The rule requires that a dual
showing be made which incorporates both a subjective and an objective
threshold component. In order even to obtain an evidentiary hearing on the
affidavit's integrity, a defendant must first make "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." Id.
at 155-56, 98 S.Ct. at 2676-77. This showing "must be more than conclusory"
and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at
2684. In addition, the false information must be essential to the probable cause
determination: "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."
Id. at 171-72, 98 S.Ct. at 2684-85. The Franks test also applies when affiants
omit material facts "with the intent to make, or in reckless disregard of whether
they thereby made, the affidavit misleading." United States v. Reivich, 793
F.2d 957, 961 (8th Cir.1986).
15

If a Franks hearing is appropriate and an affiant's material perjury or

recklessness is established by a preponderance of the evidence, the warrant
"must be voided" and evidence or testimony gathered pursuant to it must be
excluded. Id. at 156, 98 S.Ct. at 2676. A warrant that violates Franks is not
subject to the good-faith exception to the exclusionary rule announced in
United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d
677 (1984).

B.
16

The district court granted Johnson's request for a Franks hearing based on its
conclusion that

17
Johnson
has made a strong showing that the FBI agent who applied for the warrants
intentionally omitted the information in the warrant application that none of the six
eye witnesses identified Johnson. There was an omission of fact that the court
regards as an important fact. ... [T]he omission ... may have affected the outcome of
the magistrate's probable cause determination.
18

The district court held that agent Moore's omission of the Johnson

19
photospread
information satisfied the "intent" prerequisite to a Franks hearing
without considering whether Moore intended the omission to mislead the magistrate
or omitted the information in reckless disregard of its misleading effect. Johnson
argues on appeal that the district court's decision to hold a Franks hearing was
correct because intentional omission is all that this element of Franks requires.
20

We think this formulation fails to capture the meaning of Franks or the realities
of the warrant application process. Affidavits "are normally drafted by

nonlawyers in the midst and haste of a criminal investigation." United States v.

Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). An
affiant cannot be expected to include in an affidavit every piece of information
gathered in the course of an investigation. However, every decision not to
include certain information in the affidavit is "intentional" insofar as it is made
knowingly. If, as the district court held, this type of "intentional" omission is all
that Franks requires, the Franks intent prerequisite would be satisfied in almost
every case.
21

Franks clearly requires defendants to allege more than "intentional" omission in

this weak sense. "The mere fact that the affiant did not list every conceivable
conclusion does not taint the validity of the affidavit." United States v. Burnes,
816 F.2d 1354, 1358 (9th Cir.1987). Franks protects against omissions that are
designed to mislead, or that are made in reckless disregard of whether they
would mislead, the magistrate. See Reivich, 793 F.2d at 961. 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." Franks, 438 U.S. at
171, 98 S.Ct. at 2684. "[M]ere[ ] negligen[ce] in ... recording the facts relevant
to a probable-cause determination" is not enough. Id. at 170, 98 S.Ct. at 2683.

22

This case presents a question of omission rather than commission on the part of
the agent. While omissions may not be per se immune from inquiry, see United
States v. Owens, 882 F.2d 1493, 1498-99 (10th Cir.1989); Reivich, 793 F.2d at
961, 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. This latter situation potentially
opens officers to endless conjecture about investigative leads, fragments of
information, or other matter that might, if included, have redounded to
defendant's benefit. The potential for endless rounds of Franks hearings to
contest facially sufficient warrants is readily apparent.

23

Here Johnson made no showing, and the district court possessed no evidence,
that agent Moore had the requisite intent to mislead. The most that the record
here reveals about Moore's failure to include the photospread information is
that he did not believe it to be relevant to the probable cause determination. At
the very worst, he was merely negligent in disclosing all relevant considerations
to the magistrate. His 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.

24

Nor could the district court have inferred intent or recklessness from the fact of
omission itself. Some courts have recognized this type of inference if the

omitted material was "clearly critical" to the finding of probable cause. See
United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980). We have doubts
about the validity of inferring bad motive under Franks from the fact of
omission alone, for such an inference collapses into a single inquiry the two
elements--"intentionality" and "materiality"--which Franks states are
independently necessary. But in any event, as the next subsection shows, the
omitted information here lacked materiality and thus was far from being
"clearly critical" to the probable cause determination.
C.
25

Neither the omitted information nor the allegedly skewed composite height
description was material to the probable cause determination. For this reason
also, a Franks hearing was not required.

26

The district court misstated the type of materiality that Franks requires. It
believed that the affiant's omission was material because it "may have affected
the outcome" of the probable cause determination. However, 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."
Franks, 438 U.S. at 156, 98 S.Ct. at 2676. For an omission to serve as the basis
for a hearing under Franks, it must be such that its inclusion in the affidavit
would defeat probable cause for arrest. See Reivich, 793 F.2d at 961. Omitted
information that is potentially relevant but not dispositive is not enough to
warrant a Franks hearing. Id. at 962.

27

In determining whether the affidavit with the omitted information would be

supported by probable cause, we must apply the "totality of the circumstances"
test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
This test requires "a practical, commonsense decision whether, given all the
circumstances set forth in the affidavit," id. at 238, 103 S.Ct. at 2332, there is
probable cause to believe the suspect committed an offense. See Beck v. Ohio,
379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

28

The Johnson affidavit including the omitted data still contains more than ample
information to establish probable cause to arrest Johnson. The affidavit stated
that Colkley was a suspect in the robbery based on photographic identification
and past robbery activity. The car Colkley purchased with cash the day after the
robbery was detected outside Johnson's home. In addition, Johnson himself was
involved in cash purchases of two cars within a month of the robbery. The
second car was paid for with one of the bait bills taken during the robbery.
Finally, the Johnson affidavit recited the informant's tip to the police that

Johnson had admitted committing a bank robbery that bore a remarkable

resemblance to the one at Baltimore Federal Financial. Although the informant
was anonymous, his tip was sufficiently detailed and sufficiently corroborated
by independent police work to come within the standards of probable cause
articulated in Gates, 462 U.S. at 238, 241-42, 103 S.Ct. at 2332, 2333-34.
29

The inclusion of the photographic identification information does not affect this
probable cause to arrest Johnson. The inability of any of the witnesses to make
a positive identification on the Johnson photospread, and the inconsistencies in
witness identifications of those individuals who looked "similar" to the vault
robber, undercuts any exculpatory value in the photospread information. And to
the extent that the Johnson photospread information has exculpatory value, it is
not enough to defeat probable cause when weighed against the informant's tip
and Johnson's car purchase with a stolen bait bill.

30

Finally, inclusion of all the testimony concerning the vault robber's height does
not affect the probable cause determination. Not surprisingly, witness testimony
concerning the vault robber's height varied, with estimates ranging from 5'6" to
5'10". These small discrepancies in height lack significance in the probable
cause determination, particularly in light of the other evidence that points to
probable cause to arrest Johnson.

III.
31

In addition to being unsupported by the logic of Franks, Johnson's contention

that the Fourth Amendment requires an affiant to include all potentially
exculpatory evidence in the affidavit must be rejected on more general grounds.

32

In effect, Johnson asks us to import the rule of Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), into the warrant application process.
Brady and its progeny establish that the prosecutor has a duty to disclose to the
defendant exculpatory evidence, defined as material evidence that would create
a reasonable doubt as to the correctness of a guilty verdict at trial. See United
States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342
(1976); see also United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375,
3381, 87 L.Ed.2d 481 (1985).

33

We must be cautious, however, about importing the panoply of Brady

protections from trial practice into warrant application proceedings. The Brady
rule derives from due process and is designed to ensure fair criminal trials.
Bagley, 473 U.S. at 675, 105 S.Ct. at 3379; Brady, 373 U.S. at 87, 83 S.Ct. at

1196. It is at trial that the accused is cloaked with the presumption of

innocence and may put the state to its proof beyond a reasonable doubt. By
contrast, the probable cause determination in Franks, which derives from the
Fourth Amendment, involves no definitive adjudication of innocence or guilt.
Because the consequences of arrest or search are less severe and irremediable
than the consequences of an adverse criminal verdict, a duty to disclose
potentially exculpatory information appropriate in the setting of a trial may be
less compelling in the context of an application for a warrant.
34

There are other differences in the duties imposed by Brady and Franks. The
constitutional obligation to disclose material exculpatory information in the
Brady context attaches regardless of the intent of the prosecutor, and
constitutional error can be found without a demonstration of moral culpability.
Agurs, 427 U.S. at 110, 96 S.Ct. at 2400. A Franks violation, however, requires
such a showing: "deliberate falsehood" or "reckless disregard for the truth."
Franks, 438 U.S. at 171, 98 S.Ct. at 2684. The "overriding concern" of Brady is
with the "justice of the finding of guilt" that is appropriate at trial. Agurs, 427
U.S. at 112, 96 S.Ct. at 2401. Franks, by contrast, recognizes that the
information an affiant reports from an informant may not ultimately be
accurate, and is willing to tolerate such a result so long as the affiant did not
deliberately mislead the magistrate. 438 U.S. at 165, 171-72, 98 S.Ct. at 2681,
2684-85. These disparate standards of intent reflect differences in the
consequences of error in the two contexts, and recognize that the non-lawyers
who normally secure warrants in the heat of a criminal investigation should not
be burdened with the same duty to assess and disclose information as a
prosecutor who possesses a mature knowledge of the entire case. To state the
differences between the duties of disclosure is not, of course, to condone
deliberate misrepresentations to magistrates, but simply to point out that ground
cannot be shifted gracefully between obligations at trial and those in the
warrant application process.

35

Moreover, 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. It would perforce result in
perniciously prolix affidavits that would distract police officers from more
important duties and render the magistrate's determination of probable cause
unnecessarily burdensome. In addition, a broad duty of inclusion would turn
every arrest or search into a warrant contest. Such consequences would, in turn,
discourage reliance on warrants, a result the Supreme Court has stated should

be avoided in shaping Fourth Amendment doctrine. Gates, 462 U.S. at 236-37,

103 S.Ct. at 2331-32.
36

In short, a rule requiring affiants to disclose all potentially exculpatory

information has nothing to recommend it. Unless the 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.

IV.
37

The defendants raise several further issues that fall within the district court's
discretion. First, they contend that the district court should not have excused a
member of the jury without an evidentiary hearing to determine the juror's
fitness. However, the district court clearly did not abuse its discretion in ruling
that the juror's failure to appear for thirty minutes of testimony warranted
substitution without further inquiry. See United States v. Corsino, 812 F.2d 26,
33 (1st Cir.1987).

38

Defendants next argue that the district court should not have admitted evidence
of the handguns found in Colkley's car and the .38 caliber bullet found in
Johnson's home. Defendants claim that the guns and bullet constitute "other bad
acts" evidence under Fed.R.Evid. 404(b). But the evidence was probative of the
crimes charged against defendants, not other bad acts. It was thus admissible.

39

Finally, the trial court did not abuse its discretion in admitting evidence of
Johnson's sudden acquisition of wealth after the bank robbery. Such evidence is
relevant and generally admissible, especially when, as here, there has been a
showing that the defendant was impecunious prior to the crime. United States
v. Pensinger, 549 F.2d 1150, 1152 (8th Cir.1977).V.

40

For the foregoing reasons, the judgments of conviction are

41

AFFIRMED.