United States v. Dow

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LACARL DOW, Defendant-Appellant.

No. 22-10200

United States Court of Appeals, Ninth Circuit

September 15, 2023

NOT FOR PUBLICATION

Submitted September 13, 2023 ^[**] San Francisco, California

Appeal from the United States District Court for the Northern District of California No. 3:19-cr-00138-CRB-1 Charles R Breyer, District Judge, Presiding

Before: WALLACE, BOGGS, ^[***] and FORREST, Circuit Judges.

MEMORANDUM ^[*]

Lacarl Dow appeals from the district court's denial of his motion to suppress following his conditional plea to conspiracy to commit and interfere with commerce by robbery, 18 U.S.C. § 1951(a), interference with commerce by robbery, 18 U.S.C. § 1951(a), and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that the district court did not err in concluding that there was a substantial basis for determining that the warrants issued by the state court were supported by probable cause and that Dow failed to make the necessary showing for a Franks hearing, we affirm.

1. Probable Cause.

While we review the denial of a motion to suppress de novo, the underlying finding of probable cause is reviewed for clear error. United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011). Findings in this context are given "great deference" and will be upheld so long as there was a substantial basis for finding probable cause to search. Id. Probable cause itself "is not a high bar." District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018) (citation omitted). It exists so long as "it would be reasonable to seek the evidence in the place indicated in the affidavit" looking to "the totality of the circumstances in a common-sense manner." United States v. Fisher, 56 F.4th 673, 683-84 (9th Cir. 2022) (internal quotation marks and citations omitted).

Here, the state court had a substantial basis upon which to conclude that there was probable cause to seek evidence regarding the unsolved series of robberies in the requested cell phone records (including location) and GPS tracking.^[1] The probable cause affidavits provided a link between Dow and Sekou Carson through four calls from Carson to Dow's number on the day Carson committed two robberies. Carson in turn was linked to six unsolved robberies because two robberies he committed that day occurred at the same location as two unsolved robberies from the series of six, all of which followed a similar pattern. And in one of the unsolved robberies, a white 4-door sedan matching the color, make, and model of Dow's vehicle-in which he had previously been apprehended and arrested for possession of stolen property-was used. From this information, the state court had a substantial basis from which to conclude that there was probable cause that evidence regarding the robberies would be found in Dow's cell records and through GPS tracking of Dow's vehicle. See Blight v. City of Manteca, 944 F.3d 1061, 1066 (9th Cir. 2019) ("A search warrant affidavit will demonstrate probable cause if, under the totality of the circumstances, it reveals a fair probability that contraband or evidence of a crime will be found in a particular place." (internal quotation marks and citation omitted)). Dow's attempt to parse each piece of information discussed in the affidavits does not defeat the conclusion that the totality of the facts presented was sufficient to give rise to probable cause and disregards the state court's ability to draw reasonable inferences from the information presented. See id. at 1066-67; see also United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006).

2. Franks Hearing.

We review the denial of a Franks hearing de novo. United States v. Norris, 942 F.3d 902, 907 (9th Cir. 2019). To obtain a Franks hearing to test the validity of an affidavit underlying a search warrant, "a defendant must make a substantial preliminary showing that: (1) the affiant officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant, and (2) the false or misleading statement or omission was material, i.e., necessary to finding probable cause." Id. at 909-10 (internal quotation marks and citation omitted). "The key inquiry in resolving a Franks motion is whether probable cause remains once any misrepresentations are corrected and any omissions are supplemented." Id. at 910.

Assuming, as the district court did, that the misstatements and omissions that Dow identified in the warrant affidavits were made intentionally or recklessly, they were immaterial. Taking into account that (1) Carson's four calls to Dow were relatively short, occurred hours before the robberies, and were among 69 other calls made by Carson prior to the robberies he was arrested for; and (2) the vehicle matching the description of Dow's only dropped off the robbery suspect and left a couple of minutes after the robbery suspect fled by on foot,^[2] probable cause still existed.^[3] See Norris, 942 F.3d at 910.

AFFIRMED.

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[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

[**] The panel...