Argued: December 13, 2018
from the United States District Court for the Eastern
District of Virginia at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:16-cr-00124-HCM-DEM-1).
R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Zachary Terwilliger, United States Attorney, Alexandria,
Virginia, Sherrie S. Capotosto, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
MOTZ, AGEE, and RICHARDSON, Circuit Judges.
Richardson, Circuit Judge.
jury convicted Benitez Auguarius Moody of federal drug and
firearm offenses, he sought an evidentiary hearing to
challenge a facially sufficient search warrant affidavit.
Such hearings are called "Franks
hearings," named for the Supreme Court's decision
permitting them in Franks v. Delaware, 438 U.S. 154
(1978). In his request, Moody argued that a police
officer's trial testimony contradicted her search warrant
affidavit that had led to evidence used at his trial. The
district court, however, refused to hold a Franks
hearing, finding that Moody had failed to make the necessary
threshold showing. We affirm.
March 24, 2016, as part of a larger investigation into
narcotics trafficking, police used a confidential informant
to buy heroin from Moody, a suspected drug dealer. Later that
evening, Portsmouth Police Detective Beth Shelkey applied for
warrants to search Moody's home (1212 Lindsay Avenue) and
vehicle (a black BMW). Shelkey's supporting affidavit
described the investigation, including the controlled heroin
purchase on March 24 as well as other drug transactions:
During the past 6 months, this affiant and other members of
the Portsmouth Police Department [Special Investigations
Unit] have utilized Confidential Informants who have been up
to and inside of 1212 Lindsay Ave Portsmouth, VA and
purchased quantities of heroin and cocaine from MOODY. During
the investigation controlled purchases have been conducted
directly from 1212 Lindsay Ave Portsmouth VA and from a 2004
black in color BMW convertible displaying Virginia tags
VLD-9617 reregistered to MOODY.
Within the past 24hrs this affiant and other members of the
Portsmouth Police Department utilized a Confidential
Informant who placed a telephone call to MOODY asking to
purchase heroin from MOODY. MOODY arranged to meet the
Confidential Informant in a pre arranged location. During
this controlled purchase, MOODY and other co-conspirators
(two unidentified black females) were observed leaving from
1212 Lindsay Ave Portsmouth, VA and surveilled traveling to
the pre arranged location and selling the Informant heroin.
The heroin was recovered by members of the Portsmouth Police
Department Special investigations Unit, field tested and
resulted positive for heroin.
J.A. 446. A state magistrate issued the warrants that same
day. The resulting searches uncovered four firearms, drugs,
drug paraphernalia, and thousands of dollars in cash. Moody
was ultimately indicted by a federal grand jury on multiple
counts of drug possession ...