Jonathan Lamar Marks v. Commonwealth of Virginia
0897164
| Va. Ct. App. | Apr 25, 2017Background
- Early on Aug. 2, 2015 an individual wearing dark clothing and a black mask used tools to destroy a Wells Fargo ATM; a backpack containing a Samsung cell phone, a minute key, black socks and tools was found nearby.
- Forensic analysis of the phone (number 703-457-0396) showed texts referencing “Jon/Jonathon” and, on Feb. 7, 2015, the address “20271 Beechwood Ter.” and later “Apt 103.” A text sent ~1 hour before the burglary read, “Door should’ve been unlocked. Gotta go take care of something.”
- Detect. Cunningham applied for and obtained a warrant to search 20271 Beechwood Terrace #103 based on the phone found at the scene, its messages linking it to “Jon/Jonathon” and the Beechwood address, and a law-enforcement database tying Jonathan Marks to that address.
- Officers executed the first warrant, seizing Nike shoes, a Polo cap, sweatpants, and other items; a second warrant (based on evidence observed during the first search) yielded a minute key and documents bearing Marks’s name and address.
- Marks was tried and convicted of breaking and entering with intent to commit larceny, possession of burglary tools, destruction of property, wearing a mask in public, and attempted grand larceny; he appealed arguing the warrants lacked probable cause and that he was entitled to a Franks hearing.
Issues
| Issue | Marks’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether the affidavit supporting the initial warrant established probable cause to search Marks’s residence | The affidavit omitted that the text with the Beechwood address was almost six months old, that only 9 of 355 texts referenced “Jon,” and did not explain how Marks was “linked” to the address; omissions made the nexus stale or insufficient | The affidavit provided a common-sense nexus: phone found at scene, texts linking the phone to “Jon” and to the Beechwood address, and LE database linking Jonathan to that address; viewed in totality it supported probable cause | Warrant supported by probable cause; denial of suppression affirmed |
| Whether the omissions in the affidavit required a Franks hearing | Detective recklessly omitted material facts and thus made the affidavit misleading, so Marks is entitled to a Franks hearing | No evidence of deliberate or reckless falsity or omission; allegations show at most negligence or disagreement about sufficiency | Trial court did not err denying a Franks hearing; no substantial preliminary showing of intentional/reckless falsehood |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (defendant entitled to hearing when affidavit contains deliberate or reckless falsehoods or omissions necessary to probable cause)
- Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (probable cause judged by totality-of-the-circumstances; magistrate makes common-sense decision)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (good-faith exception to exclusionary rule)
- United States v. Colkley, 899 F.2d 297 (4th Cir. 1990) (Franks extends to omissions made with intent or reckless disregard to mislead)
- Anzualda v. Commonwealth, 44 Va. App. 764 (Va. Ct. App. 2005) (staleness analysis depends on nature of evidence, time lapse, and probability items remain at location)
- Barnes v. Commonwealth, 279 Va. 22 (Va. 2010) (defendant must make substantial preliminary showing of deliberate or reckless misstatements/omissions to obtain Franks hearing)