NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 19-2175 ________________

UNITED STATES OF AMERICA

v.

DAVID TONEY, Appellant ________________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-17-cr-00407-001) District Judge: Honorable Mitchell S. Goldberg ________________

Submitted Under Third Circuit L.A.R. 34.1(a) March 10, 2020

Before: McKEE, AMBRO, and PHIPPS, Circuit Judges

(Opinion filed: July 7, 2020)

________________

OPINION* ________________

AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. David Toney pled guilty to conspiracy to distribute 500 grams or more of cocaine,

in violation of

, 841(a)(1) & (b)(1)(A), and possession of a firearm in

furtherance of a drug trafficking crime, in violation of

(c). He appeals his

conviction, contending that the District Court erred in denying (1) his motion to suppress

evidence of drugs and firearms found in his two residences because the search warrants

were not supported by probable cause, and (2) his motion for a hearing under Franks v.

Delaware,

(1978), because the warrant applications contained false and

material misstatements.1

I.

Beginning in February 2015, the Pennsylvania State Police, later joined by the

Delaware State Police, conducted a months-long investigation into a drug trafficking

operation involving Toney and his co-defendants. Confidential informants, surveillance,

intercepted phone calls of associates, and phone location or “ping” data ultimately led

Pennsylvania Officers Charles Steinmetz and Javier Garcia to apply for a wiretap in

September 2015 of an “unknown” male’s telephone number that turned out to belong to

Toney, a central figure in the trafficking operation. A judge authorized the wiretap.

On November 24, 2015, on the basis of information learned from intercepted

phone calls and continued surveillance and investigation, the officers applied for a search

warrant of 4181 Leidy Avenue in Philadelphia, Pennsylvania, and the next day Delaware

1 The District Court had jurisdiction pursuant to

. We have appellate jurisdiction under

and

(a). 2 Officer Eric Huston applied for a warrant for 149 Portside Court in Bear, Wilmington,

Delaware.

In the affidavit for the Leidy Avenue application, Officers Steinmetz and Garcia

summarized their extensive law enforcement and drug investigation experience and

training. They detailed at length the fruits of their investigation, including how they

came ultimately to identify Toney. They also attached the wiretap application for a

“215” telephone number—Toney’s number. In support of the Portside Court application,

Officer Huston similarly summarized his extensive experience, his independent

verification of the contents of the Leidy Avenue warrant, and his own physical

surveillance of Toney. Judges granted both warrants.

The follow-up searches yielded firearms, digital scales, money counters, and

packaging material, which ultimately led to the indictment. As a result, Toney and his

co-defendants faced several drug conspiracy and firearm charges. Toney moved to

suppress the evidence obtained from both residences, arguing that the underlying wiretap

application and search warrants contained false statements, thereby requiring a Franks

hearing, and that the search warrants were not supported by probable cause. The District

Court held a hearing on the motions and considered the universe of materials filed in

support of the warrants—an affidavit and two wiretap applications, one for Toney’s

phone and another for the phone of his associate James Townsend, for the Leidy Avenue

warrant, and an affidavit for the Portside Court warrant. It denied the motions, finding

that Toney had failed to make the required preliminary showing for a Franks hearing and

that there was sufficient probable cause for both warrants.

3 On appeal, Toney renews his Franks and probable cause arguments, and contends

the good-faith exception does not apply.

II.

A. Franks Hearing2

A defendant has a right to challenge the truthfulness of factual statements made in

a probable cause affidavit supporting a warrant if he can make “a ‘substantial preliminary

showing’ that the affidavit contained a false statement, . . . made knowingly or with

reckless disregard for the truth, which is material to the finding of probable cause.”

United States v. Yusuf,

(3d Cir. 2006) (citation omitted).

Toney argues that the search warrants and wiretap application contain “false and

contradictory” statements, Toney Br. at 6, because while the November 24 warrants

identify “TONEY” as using the “215” telephone number on September 19, 2015, the

September 29 wiretap application lists the user of that number on the same date as an

“unknown male.” See, e.g., J.A. 108 ¶ 60; J.A. 430 ¶ 218. But Toney fails to show that

this statement was false, let alone how it was made knowingly or with reckless disregard

of the truth. Rather, we agree with the District Court that while the officers did not know

the user of the “215” number on September 29, their subsequent investigation during the

nearly two months between the wiretap application and warrant applications revealed the

user’s identity as Toney. Specifically, as the District Court found based on the Leidy

Avenue search warrant affidavit, the officers “learned that Toney was using cellphone

2 We have never established a standard of review for the denial of a Franks hearing, United States v. Pavulak,

, 665–66 (3d Cir. 2012), and we decline to do so here because, under either clear-error or a fresh review, Toney’s argument fails. 4 number 215-***-**** by using ‘ping’ information to track his location, conducting

surveillance, and performing a traffic stop wherein Toney identified himself.” J.A. 28.

“In other words, [the officers] learned in October of 2015 that David Toney had been

using the cellphone number, but did not know this information when they applied for the

Wiretap Application on September 29, 2015.”

Accordingly, we agree that Toney

failed to make the “substantial preliminary showing” required for a Franks hearing.

Toney now raises several additional inconsistencies between the warrants and the

wiretap application. As he failed to raise these challenges in District Court (or show

good cause for his failure), they are forfeited. See United States v. Rose,

(3d Cir. 2008); see also United States v. Klump,

(2d Cir. 2008).

Even assuming these arguments are not forfeited, Toney falls short of making the

“substantial” showing that they were knowing or reckless falsehoods. For example, he

points to an inconsistency in the Leidy Avenue warrant that places his activities on

September 22 at “4181” Leidy Avenue, while the wiretap application places his activities

on that date at “4179” Leidy Avenue. J.A. 139 ¶¶ 229–30; 461–62 ¶¶ 387–88. He also

contends that the warrant affidavit contains no record of surveillance on September 23,

2015, but then erroneously states that the Chevy Tahoe that Toney was driving on

October 1, 2015, was seen on Leidy Avenue on September 23, 2015. J.A. 148–49 ¶ 292;

J.A. 191 ¶ 8, J.A. 146. But Toney has provided no evidence, let alone a substantial

showing, that these inconsistencies were made knowingly or with reckless disregard for

the truth, or that they were anything more than typographical errors. See United States v.

Johnson,

, 65 n.3 (3d Cir. 1982) (internal citation omitted) (“[T]he warrant

5 and the affidavit contain a ‘typographical error’ in that there is no Chapter 4752 of the

state code, although there is a Section 4752 which sets forth the designated crime. We

attach no significance to this ‘(m)inor irregularit(y).’”) (alterations in original).

Accordingly, we affirm the denial of a Franks hearing.

B. The Search Warrants3

Toney also contends there was not probable cause to support the Leidy Avenue

warrant because, considering the inconsistencies described above, there was insufficient

evidence to link him to the “215” telephone number, and much of the District Court’s

probable cause finding was based on intercepted conversations from this number.

In reviewing a magistrate judge’s probable-cause determination, our inquiry is

limited to determining whether the judge had a “substantial basis” to conclude that

probable cause existed. Illinois v. Gates,

, 238–39 (1983). That is a

“practical, commonsense decision” whether “there is a fair probability that contraband or

evidence of a crime will be found in a particular place.”

. And while evidence

that a suspect is a drug dealer is not in itself probable cause to search his residence,

probable cause exists where there is a connection between the suspect’s home and his

drug-dealing activities. United States v. Stearn,

(3d Cir. 2010).

3 We review the District Court's findings of fact on a motion to suppress for clear error, but we exercise a fresh review of its legal conclusions. United States v. Tracey,

(3d Cir. 2010). 6 As recounted by the District Court, the detailed investigation summary—which

includes call logs, text data, intercepted phone calls, information from confidential

informants, and surveillance observations—given in support of the warrant application

provides a substantial basis for the probable cause determination that drugs or evidence

thereof would be found at the Leidy Avenue house. J.A. 33–34. Contrary to Toney’s

argument that several of the District Court’s findings of fact are contradicted by the

warrant (largely related to the inconsistencies related above), there is ample corroborating

evidence to support its factual findings, and thus the Court did not clearly err.4

Toney also challenges the Portside Court warrant. While conceding that the

affidavit contained enough information to conclude that he owned the residence, he

contends there was no probable cause to conclude that drug dealing activity took place

there. The same information described above provides evidence that Toney was a drug-

dealer, which Delaware Officer Huston independently verified. And, as well summarized

by the District Court, the evidence linking the Portside Court house to drug-dealing

activity includes (1) surveillance that Toney actively returned to the residence during his

investigation, (2) a phone conversation to arrange a drug buy where Toney told his co-

defendant that he was staying at his residence in Delaware and would be coming straight

to the buy, and (3) additional surveillance of drug buys near the residence. J.A. 36–37.

4 Toney cites as an example that the District Court found as fact that Toney was observed leaving 4181 Leidy Avenue on September 19, 2015, while the warrant alleges that he was leaving 4175 Leidy Avenue. J.A. 16 ¶ 15; J.A. 116 ¶ 87. But looking at all the materials considered by the District Court, it is evident the officers were not initially certain, based on their surveillance, which house Townsend was leaving because there was no house number on that particular house. It became clear as the investigation progressed, however, that the place of the suspected activity was 4181 Leidy Avenue. 7 Thus there is a substantial basis from which the judge could find probable cause that

Portside Court was the location of drug-dealing activity.

Because we agree that the warrants were supported by probable cause, we need

not address Toney’s argument that the good-faith exception does not apply.

* * * * *

In this context, we affirm the well reasoned opinion of the District Court.

8