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w . v i l l a no va . e du/thir dc ir c uit_2004/868NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT No. 03-2519

________________ UNITED S TATES OF AMERI CA

v. ORUS TU B
. BRO WN a/k/aTJ Orustu B. Brown, Appellant

________________________________ On A ppeal Fro m the U nited States D istrict Court For th e M iddle D istrict of P enns ylvania (D.C. Crim. No. 02-cr- 00236) Distri ct Judge: Honorable Sy lvia H. Rambo

_______________________________________ Submitte d Under Third Circ uit LAR 34.1(a)

December 15, 2003 Be for e: R OT H, M CK EE AN D R OS EN N, CIRCUIT J UDGES

(Fil ed: April6, 2004)

_______________________

OPI NION

_______________________ Ro th, Circuit

Judge1 The Distri ct Court a lso deni ed Brown’s subsequent motion t o reconsi der. The Dis trict C our t did not abu se its disc retio n in den ying th e m otio n. See United States v. He rrold , 962 F.2d 1131 (3 d Cir. 199 2) (stating standard o f review ). 2 Ap pellan t Oru stu B . Brow n w as ch arged in a on e cou nt indic tmen t with in tent to dist ribute more than 5 gr ams of cocaine i n violat ion of 21 U.S.C. § 841(a)( 1) and (b)(1) (B)(i ii) . The charge i n the indi ctment was base d on evidence s eized fr om Brown by the York City

Police on August

9, 2002, during a search inci dent to an arres t. The i niti al stop and ar

rest of Brown was made pursuant to an outst anding arrest warr ant naming Brown as a suspect

for robbery. The robberycharges were l ater wit hdrawn. Brown file d a motion t o suppress evidence, assert ing that the warrant

was lacking i n indici a of probab le cause. A fter condu cting a supp ression hearing , the United S tates District Court for the Middl e District of Pennsyl vania deni ed the moti on. 1 Bro wn appe als. W e w ill aff irm. The facts t

hat le d the poli ce to obt ain the arres t warrant against Brown are as follows. On July 11, 2002, at approximately 9:00 a.m. the Allfirs t Bank at 800 East Market Stree t, York, Pennsyl vania, was robbed by two gunmen. The robbers had gained access t o the bank pri or to i ts openi ng, at which time t

hey emer ged from thei r hidi ng places and overcame the tellers. Each robber w ore a black jumpsuit, colored l atex gloves, and a nyl on mask. One of the fi rearms car ried bythe robber s was a lar ge cali ber blac k revolver with a wooden grip. The other gun was a si lver pi stolwith a bri ght orange saf ety. U pon exiti ng t he b ank , one rob ber rem ove d hi s m ask and wa s see n by a cus tom er,3

Ed ith S mith . Th e ro bbe rs es cap ed in a m aro on H ond a w ith ap pro xim ately $ 400 ,000 .00. The H onda, later determ ined to be stolen , was fo und ap proxima tely twenty minutes later, aba ndo ned
. During the i nvesti gation i nto the robbery , a t elle r at All firs t Bank, Bil an Nelson, bec am e a ta rge t of in qui ry. She wa s inte rvie we d on July 1 1, Ju ly 23, a nd A ugu st 2, 2 002
. Ne lson info rme d th e po lice in her July 1 1 in terv iew that a prio r bo yfrien d of her s, a Balti more County Pol ice Officer named IvoryBing, had di scussed committing a bank
ro bbe ry . N el so n me nt io ne d Bi ng a ga in in th e J ul y 23 i nt er vi ew. Prior to Nelson’s August 2 interview, the polic e inte rviewed an i nformant, Adrien Falli ngs. Fal lings related to the police that he , Brown, and DeCarlo Pi ckney met in Bilan Nelson’s apartment to plan the robberyand that Nelson provi ded Brown with a key to the bank. At the time t

hat the robberyoccurred Fal lings was in pri son. However, he relat ed to the pol ice that ei ther Brown or Pi ckney ha d contacted him after the robbery and described h ow the robbery occu rred. Fallings describe d the two guns us ed by the robbe rs
as a silve r sem i-au tom atic w ith an ora nge saf ety, an d a b lack gun wit h a w ood en g rip. According to Fal lings , the robbers us ed lat ex gloves and nylon masks, fled the bank in a stol en maroon Honda, and later ditched that vehicl e. The information re late d by Fal lings matched the de tail s of the ac tual robbery . None of the det ails had been publi shed or otherw ise ma de av ailable to the pu blic. A fter inte rview ing F allings, th e polic e tried to contact the bank customer who had seen the faceof one of the gunmen, but she was out2 “TC” is Tobias Cunningham. “KC” is Kevin Carl Randol ph. 4 of to wn . The police s ubsequentl y i ntervi ewed Nelson for a third ti me. She admitted that she had met with a “KC” and a “TC” prior to t he robberyand that

she had given “ TC” a key t o the bank. 2 She clai ms that s he did not know any one by t he name of Orustu Brown, a/k/a “TJ,” DeCarlo Pi ckney, or Adrien Fal lings . Nelson was otherwise uncooper ative
. Based on the i nformati on obtaine d from Falli ngs, an ar rest warrant was i ssued for Brown on August 3, 2002, charging him with the Jul y 11 r obbery and conspir acy. The affidavi t of probabl e cause t o support t he arres t warrant

stated that

“[a]l l the above information was provided as 1 st hand knowledge from a rel iable confidential i nformant who will be avai lable for tes timonyat al l court proceedi ngs.” After the arres t warrant had been iss ued, but

before Brown’s August 9, 2002
arres t, c ertai n other i nformati on became known to the pol ice. First , a l atent fingerprint lifted from the getaw ay car was po sitively i dentified as b elonging to Kev in Carl Randolph. Second, Edith Smith, the bank customer, identi fied Tobias Cunningham from a pho tograp h as th e indiv idual sh e had seen exiting the ba nk o n July 11 . In her A ugu st 2 inter view , Ne lson had adm itted giv ing “T C” a ke y to the ban k. On appe al, Bro wn claim s that the wa rrant itself , and th e exe cution of the wa rrant, were so defici ent that the pol ice coul d not have been ac ting i n good faith and that the evid enc e se ized sho uld hav e thu s be en s upp ress ed. See Uni te d St at es v. Wil li ams , 3 F.3d5

69, 72 (3d C ir. 1993 ). He p resen ts fou r argu men ts in sup port o f his cla im. W e w ill add ress eac h in turn . First , Brown clai ms that t he statement in t

he affidavi t of probabl e cause re garding the inf ormant’s firs t hand knowledge was fal se because Fal lings did not par ticipate i n the robbery . We agree with t he District Court

that Det ecti ve Cromer did not knowingly and delibe ratel y, or with r eckless disre gard for t he trut h, make a fal se statement when app lying f or th e w arra nt. See Franks v . Delaw are , 438 U.S. 154 ( 1978) (expl aining t he standar d used when analy zing a chal lenge t o the val idit y of a s earch warrant

based on a false a ffida vit). W hile Fa llings co uld n ot hav e partic ipated in the ro bber y, he claim ed to have obtain ed his inform ation d irectly from the so urce. S pecif ically, the sou rce in th is case was the meeting in which he and severalothers planned the robberyas well as the tele phone callhe recei ved after the robbery i n which one of the per petrators expl ained how the r obb ery w ent d ow n. F allin gs th us re layed first h and kno wle dge
. Seco nd, B row n claim ed tha t the w arrant d id no t suff iciently con vey the re liability of the inform ant. W e agre e w ith the D istrict Co urt that th e clau se “fr om a reliab le confidential i nformant, ” when read in conj unction wit h that whic h precedes i t, “ [a]llof the above was provi ded with 1 st hand k now ledge,” bolsters D etective Crom er’s conclusory st atement s et fort h in the a ffidavi t regarding the i nformant’s reli abili ty . The affidavit’s recitation of th e inform ant’s availability to have his veracity tested at all court pro cee din gs a lso b olste red the r eliab ility of th e inf orm ant’ s inf orm ation . Th us, a3 This argument does not appear to have be en clearly presented to theDistri ct Court. A review of the suppression hearing transcript, however, show s that defense cou nse l did que stion De tectiv e C rom er re gar din g th e lac k of cor rob ora tion
. 6 reasonabl e magistr ate coul d well concl ude that the affi davit of

fered subs tanti al evi dence sup por ting the r eliab ility of th e inf orm ation con taine d th erein
. See Wil li ams , 3 F.3d at 72 (3d Cir. 199 3) (considering the reliability of an anonymou s informa nt). Third, Brown claims that the veracityof Adrian Fallings’ accusations against Brown were not corrobor ated. 3 The lack of corroborati on, however, did not undermine the fact that, based on the information that Falli ngs related to the poli ce, probable cause exis ted to issu e an arre st w arra nt fo r Br ow n. See Wil li ams , 3 F.3d 72 ( apply ing a
com mo n sen se, totality of c ircum stance s app roach to dete rmine wh ether a mag istrate judge pro perly concluded that probab le cause ex ists to issue a warran t). Fina lly, Brow n claim s that the arrest w arrant w as no t exec uted in goo d faith beca use a fter the wa rrant h ad be en issu ed, bu t prior to th e exe cution of the wa rrant, E dith Smith iden tified Tobias C unning ham a s one of the bank s robbers an d Ke vin Carl Randolph’s fi ngerpri nt was found in t he getaway car. Thi s argument l acks merit . The photographi c identific ation of Tobias Cunningham and thefingerprint i dentif ication of Randolph were not so e xculpat ory of Brown and DeCarlo Pickneyas to undermine the evidence of t

heir i nvolvement pr ovided byFalli ngs. I n fact, Detecti ve Cromer test ifie d at the suppr ession he aring t hat the arres t warrant

was not inval idate d because (1) Randolph’s fi ngerpri nt in t he stol en getaway car pla ced him onlyin the c ar, not in the7

bank as one of the principals committing t he robbery ; (2) assuming that Tobias Cunningham was one of the gunmen who robbed the bank, Brown stil l could ha ve been the othe r gunman; and, (3) Fal lings ’ information was nonetheless reli able becaus e he had impli cated hi mself in a

robberyin which he had not been a suspect

and had provide d detai ls which had not

been rel eased to t

he public . Additi onally , Detective Cromer was aware that

Falli ngs had previ ouslyprovided ac curate information to ot her York poli ce officers throu gh his partne r, Detective Sc ott Nazd om, and his partner’s form er partner, Detecti ve Matt Luchko. Acco rdingly, we w ill affirm the order o f the D istrict Court denying B rown ’s
mo tion to su ppr ess.8