                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4470


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAVID RICH, a/k/a Oakie,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cr-00438-WDQ-1)


Submitted:   May 23, 2011                 Decided:   June 14, 2011


Before MOTZ, KING, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sicilia Englert, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant.   Rod J. Rosenstein, United States Attorney, Michael
C.   Hanlon,   Assistant  United  States   Attorney,  Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            David Rich was convicted, following a jury trial, of a

variety of drug- and firearm-related offenses and was sentenced

to a term of imprisonment of life plus twenty years.                                Prior to

trial, Rich moved to suppress evidence seized in a search of a

particular         apartment      in        Windsor        Mill,         Maryland           (“the

apartment”).         The     district       court    denied        the    motion.           Rich

appeals the district court’s ruling.

            On appeal, Rich argues that evidence seized from the

apartment should have been suppressed because in the affidavit

used to secure the warrant, the Government failed to establish a

nexus between the apartment and drug trafficking activity.                                   Rich

contends that the affidavit failed to establish the apartment

was Rich’s “residence.”

            We review the factual findings underlying a district

court’s ruling on a motion to suppress for clear error and the

court’s    legal     conclusions       de    novo.        United     States       v.    Kelly,

592 F.3d    586,     589     (4th Cir.),      cert.       denied,    130     S.    Ct.       3374

(2010).    When evaluating the denial of a suppression motion, we

construe     the    evidence      in    the       light     most    favorable          to    the

Government, the prevailing party below.                     Id.     This court reviews

the   validity      of   a   search    warrant       under    the        totality      of    the

circumstances,       determining        whether       the    issuing        judge      had     a

substantial basis for finding there was probable cause to issue

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the warrant.         Illinois v. Gates, 462 U.S. 213, 238-39 (1983);

United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005).

We afford great deference to the probable cause determination of

the issuing judge.          United States v. Allen, 631 F.3d 164, 173

(4th Cir. 2011).        We avoid applying “‘hypertechnical’ scrutiny

of affidavits lest police officers be encouraged to forgo the

warrant    application      process    altogether.”       United    States   v.

Robinson, 275 F.3d 371, 380 (4th Cir. 2001) (quoting Gates, 462

U.S. at 236).

             Here, the affidavit provided abundant probable cause

for     justifying    the   issuance    of   a   search   warrant    for     the

apartment.     The affidavit recounted information police obtained

from a confidential informant that was corroborated during the

course of the investigation and prior to the issuance of the

warrant.        Police       placed    the   apartment      building       under

surveillance for an evening and identified the apartment where

Rich had spent the night.         The next day, when police confronted

and identified themselves to Rich, he fled, nearly hitting an

officer with his vehicle in the process.            After a brief pursuit,

police located Rich’s abandoned vehicle and found him hiding in

a wooded area.        They recovered several cell phones and $733 in

cash.      A K-9 scan of the vehicle indicated the presence of

narcotics.      Under the totality of the circumstances, we hold



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that the issuing judge had a substantial basis supporting the

finding of probable cause to search the apartment.

                 Next, Rich argues that the district court should have

granted      a     Franks *    hearing       because    Baltimore       detective         Brian

Shutt’s affidavit contained a false statement that Shutt saw

Rich       leave       the     apartment.           Rich     asserts         that    Shutt’s

representation           “failed      to   disclose     facts    that     would      allow   a

neutral      magistrate        to     determine     whether     there    was      sufficient

proof that Rich had come out of [the apartment].”

                 In    order   to     obtain    a   Franks      hearing      to     attack    a

facially sufficient warrant affidavit, a defendant must make a

substantial showing that a false statement critical to a finding

of   probable          cause   was     knowingly       and   intentionally,          or   with

reckless         disregard      for    the     truth,    included       in    the    warrant

affidavit.            See Franks, 438 U.S. at 155-56; United States v.

Clenney, 631 F.3d 658, 663 (4th Cir. 2011).                        “This showing must

be more than conclusory and should include affidavits or other

evidence to overcome the presumption of the warrant’s validity.”

Clenney,         631    F.3d     at     663    (internal        quotation         marks    and

alterations omitted).                 Where a defendant attacks an affidavit

       *
           Franks v. Delaware, 438 U.S. 154 (1978).




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based    on    omissions,        he    must    show     that   “the       omissions     were

‘designed to mislead, . . . or made in reckless disregard of

whether       they     would     mislead’       and    that     the       omissions     were

material, meaning that ‘their inclusion in the affidavit would

defeat probable cause.’”                Id. at 664 (quoting United States v.

Colkley, 899 F.3d 297, 301 (4th Cir. 1990)) (emphasis omitted).

              Rich has failed to make the requisite showing.                           Shutt

observed the man he would later learn was Rich on a third-floor

balcony of the apartment building.                    Rich was under surveillance

as he exited the building.                    Based on a comparison with other

buildings, Shutt was able to determine that the balcony belonged

to the apartment at issue.                Although Shutt’s affidavit omitted

the     intermediate        steps      that     enabled       him    to     identify    the

apartment,       the    omission        was    neither     material,         designed    to

mislead, nor         made   in     reckless        disregard   of     whether    it    would

mislead.

              Accordingly, we affirm the district court’s judgment.

We    dispense       with   oral      argument      because    the    facts     and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                                 AFFIRMED




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