United States v. David Loren Frost

STATES of America UNITED FROST, Appellant.

David Loren

No. 92-3579. Appeals, States Court of

United

Third Circuit. May

Argued July

Decided many airport arrests of previously made

hаd carrying drugs from Ft. Lauderdale. persons a rest room watched Frost enter Adams later. Adams exit about 15 seconds and entering a testify practice would later, room, exiting and then seconds rest technique. counter-surveillance a common the rest room he looked As Frost exited suspiciously though trying to de- around as being followed. whether he was termine pulling his tee-shirt Frost was also down Jr., Corbett, Atty., Paul J. Thomas W. appeared attempt to conceal what be Atty., M. Gina Brysh (Argued), Asst. U.S. person. As Adams fol- something on his Caldone, PA, appellee. Pittsburgh, corridor, along public lowed Frost Pittsburgh, (Argued), D. Levenson Stanton apрeared to be the outline of what observed PA, appellant. rolling papers, are used in cigarette rolling marijuana cigarettes, Frost’s back ALITO, and Before: STAPLETON phoned Detective Olearchick pocket. Adams POLLAK, Judges District and Circuit him near a snack bar area. Both and met Judge *. observed Frost as he Adams Olearchick mo- again entered a rest room and exited THE COURT OPINION OF ments later. STAPLETON, Judge: Circuit time, p.m., at about 5:20 Adams At this Frost, of his motion to have After the denial approached identified and Olearchick suppressed, appellant him against officers, police evidence it as and askеd “Is themselves posses- pleaded guilty to one count of you Frost okay if talk with for a few minutes?” in ex- them, to distribute cocaine sion with intent speak and a agreed Frost kilograms, five and was sentenced cess of At the time of the conversation ensued. The sole prison. conversation, months in a federal detectives were stand- two the District Court before us is whether issue to a ing by side with their backs service side suppress. denying Frost’s motion erred facing them with hallway, and Frost stood judg- will affirm the find no error and the main corridor. Neither de- his back to Frost, ment of the District Court. attempted and neither tective to touсh gun detective’s was visible.

I. coming from Ft. Frost related that he was Lansing, way to 21,1992, County Lauderdale and was on his April Alegheny Police On Anthony Michigan. produced He his ticket folder Edward Adams Detectives noticed that upon request, in- and the detectives assigned to a narcotics were Olearchick baggage claim check attached to Pittsburgh there was detail at the Greater terdiction Adams recorded p.m., the ticket folder. Detective Airport. At about 5:00 International check, baggage claim Appellant Frost the information Detective Adams observed Ft. returned the ticket folder Frost. flight from and thеn disembark from a USAir paid for the ticket Lauderdale, lug- The detectives asked who Frost carried no Florida. paid that his uncle had had and Frost stated gage, and Adams noticed that Frost Shortly thereafter Frost stated that he jeans. Adams fare. bulges pockets in the of his Later, bought the ticket himself. testify Lauder- had later that he knew Ft. bought again that his uncle had city drugs that he said be a source dale to ticket. and detectives was aware that officers

* Poliak, sitting by designation. District Louis H. United States Honorable Pennsylvania, Judge District of for the Eastern continued, ap- identification and found that he no the conversаtion out-

As increasingly He grow standing nervous. arrest warrants. peared to Detective Olear- began shifting foot to foot and phoned police department from chick that he wringing hands. Frost related Township, Michigan, Emmett Charter and, upon to visit his uncle was in Florida police was informed a officer there that request, produced identification. The detec- possession Frost was arrested in 1990 for then returned the identi- inspected tives and “large marijuana.” a amount of Olearchick fication. phoned police office in downtown Pitts- verified, burgh by computer, which that that he and Detective Adams thеn stated narcotics, felony a Frost had 1990 arrest for officers. Detective Olearchick were marijuana. Frost would later assert that that he Detective Adams stated had observed the 1990 offense resulted in a conviction for a pockets. large bulges in Frost’s Adams marijuana misdemeanor. him, okay “if if asked Frost it would be pockets.” in he could show us what was The detectives informed Frost that he was no Adams stated that Frost was under obli- they attempted free to leave or remain while comply. voluntarily reached gation to Frost get to a search warrant. Frost told the large pockets produсed and a roll of into his that in detectives there were no narcotics pocket. from each The cash totalled cash bag, against to a threatened file law suit $3,035, mostly twenty in ten and and was them, and then that he stated wanted to produced sky pag- Frost a dollar bills. also flight Lansing. catch the next to The detec- er, commonly drug in traffick- which is used suitcase, gave receipts tives Frost pager ing. Frost retrieved the from his As pager, cash and the and instructed him on off, the effect pocket, he turned it which has how to retrieve the items if the detectives erasing telephone numbers recorded get drugs failed to a search warrant or no pager. approx- were found. Frost left the station at p.m., the detectives asked At about 5:27 imately p.m. subsequently 6:55 and boarded a airport po- accompany them to the Frost to flight Lansing. to investigate the matter lice station order to departure A few minutes after Frost’s further, agreed. and Frost and Olear- - station, ‍‌‌‌‌‌‌‌‌​‌‌​‌​​​‌​​​‌​‌​​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​‌‍dog from the and its handler proceeded chick then the 1500 feet to the arrived, dog place ap- and the sniff took station, police went to airport while Adams proximately p.m. dog “alerted” to 7:00 The arrived at retrieve Frost’s suitcasе. Adams cash, The but not the suitcase. detec- with the suitcase at about 5:40 station signed an affidavit to tives then drafted and padlock p.m. There was a on the suitcase. application of an be submitted arrived, When Adams Olear- mentioned a search warrant. The affidavit interview room. chick were seated cash, dog but did not that the alerted own, the suitcase as his but Frost identified to, dog exposed and did mention padlock how a had claimed he did not know to, also not alert the suitcase. The affidavit Adams become attached to the suitcase. felony that Frost’s arrest mentioned if would to a sеarch asked Frost consent marijuana.” A “large a amount of was for suitcase, ap- Frost refused. At and. justice a search warrant at district issued proximately p.m., 5:55 Adams informed Frost p.m. 7:55 they drug-sniffing call in a to would money, inspect the and the and that suitcase warrant, obtaining the the detectives Upon they attempt to secure a search war- would and found ten one- searched the suitcase rant for the suitcase. package Each kilogram packages of cocaine. plastic bag, covered with approximately p.m., was sealed At 6:00 the detectives plastic bag, wrapped tape, in another attempted bring drug-sniffing in a sealed layer and a layer of aluminum foil no canine detec- its handler. Because grease, and day, tape, smeared with axle duty unit one had to be duct was on wrap yet layer plastic approximately wrapped in another airport. summoned to the At time, tape. also verified Frost’s and duct this the detectives — Bostick, U.S. -,-, Florida v. flight to also removed from his then Frost was (1991) yet depart, and re- Lansing, (“When attempt question person police at 9:15 airport station

turned to the through walking down the street who is Miranda advised of his p.m. where he was inquire lоbby,, sense to airport it makes signed a written waiver of rights. Frost person feel free reasonable admit- rights gave a detailed statement walking.”) to continue cocaine courier for ting had been a that he year, that he had earned one concluded that a rea- The District Court $180,000 $150,000 profit. person in Frost’s circumstances sonable Court, Frost moved the District Before at the initial felt free to leave would have incriminating cocaine and his suppress the encounter, in that point and we concur arguments offered three statements and approached Frost The detectives conclusion. an Frost claimed that suppression. favor of you okay if we talk with and asked “Is it at his first seizure occurred unconstitutional any There is no evidence of a few minutes?” detectives, that the detec- encounter with the attempts or intimidation at coercion lug- privacy interest his tives violated his may easily have declined the officers. Frost lug- by taking long to submit the gage too continued to walk officers’ invitation and sniff, that the search gage record indi- along public corridor. The probable cause because the warrant lacked voluntarily complied with cates that Frost fact that the affidavit omitted the ticket informa- requests the officers’ for his and also because not to the suitcase alerted Perhaps impor- most and identification. of misrepresented the amount the affidavit tantly, that the detec- the record indicates prior marijuana in Frost’s that was involved to it clear that Frost could refuse tives made incident. request empty pock- his comply with their voluntarily nevertheless ets and that Frost denied the motion The District Court request. thus find no complied with that guilty suppress. pleaded then to one be- point at the of initial contact “seizure” intent to distribute of with count tween Frost and the detectives. kilograms, of five and was cocaine excess imprisonment. to 120 months sentenced of the District brought appeal this B. deny sup- judgment to the motion to Court’s took argues that the detectives Frost next arguments

press, asserting the same three luggage inspected long to too support of the motion. he offered in initial thereby interfering dog, drug-sniffing luggage. in the privacy interest II. police when a officer It established that is A. officer takes other law enforcement argument is that he was Frost’s first person, from a a “seizure” piece luggage of

unconstitutionally point at the he first seized meaning оf the Fourth Amend- within the Adams and Olear- encountered Detectives Place, v. 462 occurs. United States ment disagree. chiek. We 2637, 696, 707, 77 110 L.Ed.2d 103 S.Ct. U.S. (1983). Place, Supreme Court analo- objec- In Supreme has set forth The Court persons, of gized temporary seizures determining per- tive standard Terry v. to be constitutional purposes the were found of son has been “seized” Ohio, L.Ed.2d 20 88 S.Ct. conclude that a Fourth Amendment: “We (1968), luggage, temporary seizures of meaning person been ‘seized’within has lug- if, temporary seizure of holding that of view of the Fourth Amendment long the seizure is so as surrounding gage is constitutional the inci- all the circumstances priva- upon person’s overly intrusive dent, be- person would have a reasonable long and so as cy property, interest not free to leave.” United lieved that he was long period for a Mendenhall, 544, 554, property not detained 100 the States v. U.S. (1980). of noted that “because 1870, 1877, time. The Court See of 64 L.Ed.2d S.Ct. Place, solely on inherently nature of couri Frost relies United transient States allowing police activity airports, er at investigative stops persons (1983), Supreme

make brief a case in which the Court drug-traf suspicion of airports on reasonable found a search to be unreasonable and or- substantially ficking enhances likelihood suppression dered the pro- the evidence prevent the flow be able to will duced the search. Place, channels.” narcotics into distribution Place, law enforcement officers at Mia- Thus, 704, 103 at 2643. 462 U.S. at S.Ct. mi Airport approached International Mr. Court wrote Place, they perceived acting whom to be recognize asks the Government us suspiciously. gave Place Mr. them his identi- ‍‌‌‌‌‌‌‌‌​‌‌​‌​​​‌​​​‌​‌​​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​‌‍under the Fourth Amend- reasonableness fication and consented to a search of his personal seizures of ment of warrantless luggage. flight Mr. Because Place’s to New custody the owner on luggage from City York depart, was about to the officers cause, less than the basis of luggage. chose not to search the Place pursuing limited course purpose flight boarded his New York. flew to opening luggage, investigation, short of flight Before the had landed the Miami offi- quickly dispel confirm or that would cers, irregularities who had detected some suspicion. Specifically, we are authorities’ identification, Drug Place’s notified the En- apply Terry of principles asked to the (DEA). Agency agents forcement DEA Two Ohio____ permit to such seizures on the were waiting flight for Place when his ar- reаsonable, suspicion, articulable basis of in airport. rived York’s La New Guardia facts, objective lug: that premised on the When Place to refused consent to search of gage evidence of contains contraband or agents luggage, his the it seized and told view, application our crime. In such they taking judge Place were it to federal appropriate. agents to obtain a search warrant. The then Place, at 103 S.Ct. at 2642 luggage Kennedy airport, took the to where (citation omitted).1 they dog Ninety it to a submitted sniff. officers, upon seeing elapsed that between We find the minutes the initial seizure of pockets, Guardia, in luggage the items contained Frost’s had the at La the sniff and suspicion” Kennedy. to detain sufficient “reasonable questioning, and submit Frost for further his quote opin- relevant of passage We the the luggage belongings dog other to a sniff length: ion in Place at appearance, test. that We believe Frost’s length respondent’s The the detention of belongings adequate and behavior “were luggage precludes alone the conclusion grounds suspecting carrying [him] that the was seizure reasonable ab- temporarily detaining drugs and for him and Although sence of cause. attemptеd luggage [the officers] his while to recognized reasonableness of sei-

verify suspicions their in a dispel manner longer momentary than ... zures ones investiga an did not exceed limits of ..., brevity of the of the invasion Royer, tive detention.” Florida v. Fourth individual’s Amendment interests 502, 103 1327,75 L.Ed.2d 229 S.Ct. important determining is an factor in (1983). minimally whether the is so intru- seizure argues'that justifiable the minutes that sive as to be on reasonable sus- Moreover, elapsed picion. assessing between the time effect Detective Adams detention, brought airport police length of the we take into the suitcase to the of the (5:40 police diligently pur- p.m.) station account and the time suitcase olfactory investigation. inspec was sue their note that here offered to We (7:00 Agents the time of p.m.) long, was too and so exceeded the New York knew Guardia, investigative lawful arrival at La limits of detention. Place’s scheduled which, together suspicion sup- with rational inferences To demonstrate reasonable taken facts, investigative reasonably port stop, that intru- the officer must be from those warrant specific Terry, at 1880. point to articulable sion.” 392 U.S. at able "to facts arrange addi- in the failure to arrange for their ample time location, place greet investigation sniffing at that team to be in Place tional Guardia, the intrusion thereby upon have minimized at La but also in could his arrival inter- respondent’s Fourth Amendment on the failure to- communicate to Place where Thus, adopt although we decline to luggage being transported ests. and how his permissi- any time limitation for a outside might get be able to it back. The conduct approved a Terry stop, we have never ble gen- exhibited a of the officers Place thus prolonged 90- person of the seizure enjoyment eral lack of concern for Place’s cannot do period minute involved here and property. presented the facts this case. so on find no similar lack of concern of re- Although the 90-minute detention case before us. The detectives called for a spondent’s luggage is sufficient render drug sniffing unit as soon as Mr. Frost made unreasonable, seizure the violation was it clear that he would not consent to a search agents by the failure of the exacerbated bag. of the It does not demonstrate a lack of respondent place accurately inform diligence part of the detectives that a they transporting lug- were day, drug sniffing duty unit on was not might gage, length of time he be so that one had to be summoned to the arrangements dispossessed, and of what unit, airport. Nor it is unreasonable luggage if made for return of the would be being evening, summoned at six o’clock the investigation dispelled suspicion. nearly air would take an hour to reach the short, we hold that the detention of Moreover, port. dil detectives exhibited respondent’s luggage in this case went be- igence giving receipts for the de yond authority possessed by the narrow instructing him on how he tained items reasonably briefly luggage to detain could retrieve them. We find that none of suspected narcotics. to contain substantially diligence, ‍‌‌‌‌‌‌‌‌​‌‌​‌​​​‌​​​‌​‌​​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​‌‍the indicia of a lack of Place, 709-10, at 103 S.Ct. at 2645- U.S. Place, rmed the result oc info omitted). (citations and footnotes curred in the instant case. We thus hold emphasize passage this does the While that the detention of Frost’s suitcase consti elapsed seizure amount of time that between rights. no violation of his tuted sniff, we conclude that the law as de- posi- clared in Place does not Frost’s C. placing rigid a tion. We do not read Place as Finally, challenges the search on the investigatory limit on the duration of time by the ground that the affidavit submitted Indeed, еxpressly the con- seizures. Court petitioning for the search warrant detectives rejected approach of an- sidered and the misleading. Specifically, Frost claims was nouncing a limit: time fact that the that the affidavit concealed the desirability provid- understand the of “[w]e suitcase, that it alert to the did not ing enforcement authorities with law marijua- materially the amount of misstated Never- guide clear rule to their conduct. prior involved in Frost’s offense. na that was theless, rigid question the of a wisdom a limit under- time Such would limitation. governing situations involv The rule equally important need to allow mine the аffi ing allegedly misleading search warrant responses graduate their authorities to Supreme articulated the Court davits was any particular the demands of situation.” Delaware, 438 U.S. 98 S.Ct. in Franks v. Place, n. 103 S.Ct. at (1978). at. There the n. 10. proves the defendant held that where Court evidence “that We, Court, preponderance of the Supreme like the decline intentionally, knowingly and false statement of the seizure Place abstract the duration truth, disregard for the was reckless in Place or with from its circumstances. The seizure affida affiant in the warrant the lack of dili- included lasted 90 minutes because of a vit, statement is allegedly the false gence part [that] to minimize cause, finding probable necessary intrusion, to the a lack that was indicated challenged ... If the requires that search. information the Fourth Amendment misrepresenta- in the affidavit without the excluded to the be] the search [must fruits of provided probable cause and the lacking war- probable cause extent as same Franks, rant thus should have been issued even the affidavit.” on the face of deceive, Thus, had there been no scheme to there 155-56, at 2676-77. at would be no causal connection between the fruits of suppression of the order to secure scheme and the search and the search search, must show both that a defendant would tainted.” not be disregard existed on the faith or reckless bad affiant, there would have part and that on in Id. 715. We went Calisto to hold incorrect probable cause but for the omission, no been that where an rather than a mis- representation, challenge statement.2 is the basis affidavit, a court should ask whether probable provided the affidavit would cause if it had contained a disclosure of the the omission from first address omitted information. dog was of the fact that the affidavit to, to, not alert the suitcаse. exposed but did Applying teaching of Calisto to the Adams, prepared the affidavit case, Detective who facts of this we conclude that the rele- testimony question, gave uncontroverted vant is whether the Adams affidavit issue fact from the affidavit provided probable that he omitted this would have cause if it had concerning that it was relevant to he did not feel disclosed the information because suitcase, dog’s sniffing including ex probable cause determination. Adams that, experience, masking” couriers information “scent plained drugs by packaging have included to Adams knew often mask sсent magistrate dog’s enable the to evaluate the drugs in materials such as coffee Only or, case, failure to alert. an evaluation of the grease. axle pepper as in this supplemented affidavit so will reveal whether not omit the fact Adams testified that he did there is a causal connection between Adams’ attempt the “non-alert” in an to distort failure to disclose and the search that could knowing magistrate; truth or mislead be found to taint the search. knew, simply viewed it as a what he of a neutral factor the context framed, the relevant issue is thus its When testified further cause determinаtion.3 He difficult. Adams’ resolution is not affidavit that, non- if included the fact of the he had following information: Frost ar- included the alert, explained prac he have also Lauderdale, city for rived from source Ft. commonly employed “scent-masking” tice of carrying luggage; drugs; Frost was not ruled by drug couriers. The district court furtively, young, acted and em- Frost was under that Frost had not carried his burden techniques; ployed counter-surveillance Franks, prong agree. and we the second large bulges pockets front Frost had (3d Calisto, v. 838 F.2d 711 United States carrying rolling papers in appeared to be Cir.1988), explained we that the second re pocket; when his back Frost became nervous quirement provided: detectives; of Franks by engaged in conversation two determining speaking there when

“a vehicle for Frost contradicted himself detectives; carrying a al- Frost was connection between the with the causal bills; there large amount of cash small leged misrepresentation in that case and 1354, 1003, misstatements, 84 470 U.S. 105 S.Ct. with but we cert. denied 2. Franks dealt Martin, (1985); applied where have test to situations 615 Franks United States v. L.Ed.2d 377 the affi Cir.1980). affiants have omitted information from 318, (5th F.2d 328 Calisto, 711, See States v. 838 F.2d davit. United (3rd Cir.1988). also, e.g., See United 714-16 Calisto, 838 F.2d at 715 United States v. See 714, (1st Rumney, Cir. States v. 867 F.2d challenge (declining allows a to hold that Franks 1989) ("[m]aterial may also be ‍‌‌‌‌‌‌‌‌​‌‌​‌​​​‌​​​‌​‌​​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​‌‍the omissions omission "was occasioned to a warrant where denied, hearing.”), cert. basis for Franks magistrate by deceive the a scheme to 3194, 105 L.Ed.2d 702 109 S.Ct. fact, a fact a desire to withhold a material but Williams, (1989); 737 F.2d United States task"). magistrate’s (7th Cir.1984) ("[w]e acknowledge not material ..."), applies rationale of Franks to omissions marijuana, but that he was large amount of padlock on Frost’s suitcase was a marijuana misdemeanor. about; convicted of a nothing Frost had know claimed to drug on a related previously been arrested that Frost has failed Initially, we note first sniffing dog alerted to charge; drug a false statement was to demonstrate that clearly provided information This cash. of a Being possession made. arrested is, probability a “fair probable cause—that necessarily marijuana large amount of is not crime or evidence of a that contraband being convicted of a mari- inconsistent with found” Frost’s suitcase. been] [would Second, juana Frost tendered misdemeanor. Gates, Illinois v. tending to district court no evidence to the (1983).4 2317, 2332, When faith reckless disre- the sort of bad show drug both the fact one includes pаrt gard for the truth on the detec- alert to the suitcase sniffing did not requires. The record con- tives that Franks drug couriers often mask the fact that suggesting that Detective tains no evidence drugs in so that a suitcases scent Olearchick, Detective who called Adams or alert, failure to alert sniffing dog will not Township Police the Emmett Charter is not inconsistent with to the suitcase background cheek on running a course of thrust of information probative substantial Frost, any reason to believe knew or had Probable cause did include. which Adams supplied the Emmett that the information remains; appropriate suppression is not thus Finally, false. Township Police was Charter teachings of Franks. under would have cause we conclude affidavit had noted that Frost

existed marijuana of a misde- had been convicted challenge finally noting that Frost had been consider Frost’s meanor instead of large quantity of alleged possession mis of a to the warrant because of arrested marijuana marijuana. in amount of statement of the also, find prior arrest. Here

volved III. burden has failed to meet his that Frost under Franks. in the District We thus find no error sup- deny Frost’s motion to Court’s order to filed in of the war- The affidavit judgment press, affirm the and we will following information: provided rant sentence. called the Emmett Charter “[y]our affiants Headley spoke Lt. Twp. Police and POLLAK, Judge, H. District LOUIS had been arrested who stated that FROST concurring. of a at his home I join judgment of the court. also marijuana. This was veri- I large amount of subject join opinion, to the follow- county room check of the court’s police radio fied 11(C)(1): Part ing respect using the information from his caveats with FROST ” Appendix [Michigan] license.... driver’s A. p. Adams, Detective who I am troubled that that the full information is Frost now asserts to a district prepared a the affidavit submitted possession not that he was аrrested Court, Frost, surveyed suggests in that footnote nor simi- the evidence brief before this in his scrutiny probable presented the fact cause because there was no that the lar evidence was dog to the wad of cash means hearing. alerted suppression at the cross-examination very cites to a footnote in a little. Frost’s brief argument dog’s that the alert to the Nor was Appeals District of the Court of case from probable probity a cause determi- cash lacks surveys evidence indi- Columbia Circuit presented It is our to the district court. nation dogs cating drug sniffing to a would alert that generally practice refuse to consider “[w]e that high percentage all cash in circulation. See ap- the first time on issues that are raised for $639,558.00 Currency, 955 v. in U.S. United States Morning Ledger peal.” Co. v. United Newark 712, (D.C.Cir.1992). 2 We note that F.2d 714 n. States, 929, (3rd Cir.1976). We 539 F.2d finding percentage that case made no as question of whether there thus do not reach the drug sniffing dog; the would alert a cash that weight probable could be would be cause if no "contemporaneous to arrest” case concerned requirement that the alerted to the attached to the fact searches, and the for warrantless cash. Moreоver, question is dicta. neither footnote in application justice for a search B. warrant, included in the affidavit a recital out, points The court in footnote sniffing dog that the alerted to Frost’s roll of Frost in appeal challenged his brief on has from that recital the fact bills but omitted finding probable cause on an additional did not alert to the suitcase ground namely, that currency American — Detectives Adams and Olearchick wanted pervasively grains contaminated with of co may permission to search. It well be that caine, with the result that dog’s alert to good Detective Adams had a fаith belief that currency is not indicative possessor that the dog’s failure to alert to the suitcase did currency is in of cocaine. significantly against not cut what he and notes, however, The court that Frost did not “probable felt to be Detective Olearchick present this contention to the district court But, to search the cause” suitcase. as and, therefore, permitted should not be officer, law enforcement Detective trained present it I agree. here. I would add have realized that the Adams must district contention, made, timely had it been

justice, responsibility whose it to decide apрear would not to be on its face a frivolous cause, probable might there was one. In addition to the District of Columbia dog’s have found the disinterest the suit problem Circuit’s reference to the in United case to be relevant to the cause $639,558.00 Currency, States v. in U.S. issue, sense, dispositive. even In this (D.C.Cir.1992) (relied F.2d 714 n. on the case at bar is unlike United States v. 4) by by Frost and cited in footnote court (3d Calisto, Cir.1988), by F.2d 711 cited comparable see the Sixth Circuit’s reference Calisto, supra. the court at footnote $53,082.00 in United States v. in U.S. Cur sure, emphasized be this court that the omis (6th rency, 985 F.2d 250-51 n. 5 Cir. ‍‌‌‌‌‌‌‌‌​‌‌​‌​​​‌​​​‌​‌​​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌‌​‌‍ sion from the affidavit “was occasioned not 1993). Hayes, See also Arthur S. Cocaine- by magistrate scheme to deceive Evidence, Tainted Cash Faulted As Wall fact, a material but a desire to withhold Journal, 2,1993, p. Street June B-5. Wheth magistrate’s fact not material to the task.” reliability sniffing er concerns about the of a Agent Id. at 715. But in Calisto what Gil- dog’s currency soundly alert to are based can bride omitted from the affidavit—with a view only evidentiary be tested hearing of a protecting identity of the confidential sort that Frost did not ask the district court source —was the fact that there were three to conduct. other law enforcement officers in the infor Agent mation chаin between Gilbride and the source;

confidential the omission was not of might

a fact that tend to cast doubt on the case, reliability.

source’s In the instant what Detective Adams decided not to tell the dis ASSOCIATES, BRADGATE justice might regard trict was a fact that be INC., Appellee, justice ed militating against district as information, weight of the other con affidavit, tained which tended to show FELLOWS, ASSOCIATES, READ & might that Frost indeed be a courier. INC., Appellant. No. 92-5506. Notwithstanding my misgivings about De- disclosure, tective Adams’ failure to make full Appeals, United States Court of that, agree I with the court had the omitted Third Circuit. affidavit, information been included in justice Argued the district would nonetheless have March justifiably found cause and issued July Decided Accordingly, the search although warrant. I do not coyness, condone Detective Adams’ I

think no harm magnitude of constitutional

was done.

Case Details

Case Name: United States v. David Loren Frost

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 22, 1993

Citation: 999 F.2d 737

Docket Number: 19-2663

Court Abbreviation: 3rd Cir.