United States v. Omali McKay, 665 F. App'x 219

Background

Police stopped Omali McKay after a traffic stop and obtained search warrants for two homes based on a 19‑page probable‑cause affidavit by Trooper Walker.
The affidavit relied on statements from three named informants (Noelle Mitchell, Holli Mitchell, Christopher Fennel), surveillance, documentary evidence of McKay’s assets, and suspicious conduct suggesting drug trafficking.
Searches yielded evidence leading to multiple charges: possession with intent to distribute/conspiracy (cocaine/crack), firearms in furtherance of drug trafficking, and numerous money‑laundering and related counts.
McKay moved to suppress on multiple grounds: (1) warrant listed the same time as issuance and expiration (allegedly expired), (2) a Franks challenge attacking the veracity of Noelle Mitchell’s statements, and (3) that the affidavit failed to establish probable cause. A separate car‑stop suppression claim was not preserved.
The district court denied suppression; McKay pleaded guilty, waived most appellate rights but preserved the suppression issues and reserved limited sentencing review; he was sentenced to 180 months (statutory minimum).
Appellate counsel filed an Anders brief and motion to withdraw; McKay sought new counsel. The Third Circuit reviewed counsel’s Anders brief and the record independently.

Issues

Issue	McKay’s Argument	Government’s Argument	Held
Validity/enforceability of appellate waiver	Waiver should not bar appeal because it produced manifest injustice or was invalid	Waiver was entered knowingly during a proper Rule 11 colloquy and preserved limited appellate rights	Waiver valid; no manifest injustice, appeal limited as stipulated
Warrant listed same time for signing and expiration ("expired warrant")	Clerical error rendered warrant invalid and required suppression	The time error was a scrivener’s clerical error; officers executed warrant in good faith	No suppression; clerical error not fatal and good‑faith exception applies
Franks challenge to affidavit (alleged false statements by Noelle Mitchell)	Mitchell’s statements were false/reckless (immigration record contradicts trip to NY); the affidavit included uncorroborated claims	McKay failed to make the required substantial preliminary showing of deliberate falsehood; alleged falsehoods weren’t material to probable cause	Denied: no adequate Franks showing and remaining affidavit supports probable cause
Probable cause for home searches	Affidavit failed to show probable cause, especially if Mitchell’s statements are discounted	Other informants, documentary evidence, and surveillance provided a substantial basis for probable cause	Denied: issuing judge had substantial basis; probable cause exists
Sentence (consecutive portion)	(Preserved only conditionally) Sentence above Guidelines but was statutory minimum; challenge to consecutive portion	Sentence lawful; district court had discretion to impose partially consecutive sentence	No non‑frivolous sentencing claim: 180 months is statutory minimum and within court’s discretion

Key Cases Cited

Anders v. California, 386 U.S. 738 (U.S. 1967) (procedures when appointed counsel finds an appeal frivolous)
Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (defendant must make a substantial preliminary showing of deliberate or reckless falsity to obtain evidentiary hearing)
Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (probable cause and the ‘‘totality of the circumstances’’ test)
Herring v. United States, 555 U.S. 135 (U.S. 2009) (exclusionary rule aimed at deterring deliberate, reckless, or grossly negligent police conduct)
United States v. Franz, 772 F.3d 134 (3d Cir. 2014) (good‑faith exception to exclusionary rule and related principles)
United States v. Gary, 528 F.3d 324 (4th Cir. 2008) (typographical/clerical warrant errors do not necessarily invalidate a warrant)
United States v. Waker, 534 F.3d 168 (2d Cir. 2008) (minor clerical errors generally not fatal to search warrants)