United States v. Gary Jones

                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4671


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

GARY OWEN JONES,

                     Defendant - Appellant.


Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:18-cr-00023-GMG-RWT-1)


Argued: September 20, 2019                                   Decided: November 6, 2019


Before NIEMEYER, KEENAN, and RUSHING, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge
Niemeyer and Judge Rushing joined.


ARGUED: Aaron David Moss, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Martinsburg, West Virginia, for Appellant. Lara Kay Omps-Botteicher, OFFICE OF THE
UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF:
Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

       Gary Jones entered a conditional guilty plea to being a felon in possession of

ammunition, in violation of 

(g). On appeal, he challenges the denial of

his motion to suppress various ammunition and ammunition components seized from his

residence pursuant to a search warrant. The warrant, which authorized a search for

evidence of “threats of terrorist acts” (terrorist threats) under 

, was

based on a series of threats that Jones made online against members of law enforcement.

       Jones argues that the search warrant was invalid for two reasons. First, he asserts

that the warrant lacked probable cause on its face, because his statements did not constitute

terrorist threats under West Virginia law, and because the affidavit submitted by police to

obtain the warrant (the warrant affidavit) failed to establish the required nexus between his

residence and the evidence sought. Second, Jones alternatively maintains that even if the

warrant was facially valid, the magistrate’s probable cause determination was undermined

by the omission of several statements from the warrant affidavit. Jones claims that he made

a substantial preliminary showing that these omissions were both intentional and material,

and thus separately challenges the district court’s denial of his request for an evidentiary

hearing under Franks v. Delaware, 

 (1978).

       Upon our review, we conclude that the search warrant was supported by probable

cause, and that the alleged omissions in the warrant affidavit were immaterial to the

magistrate’s probable cause determination.       We therefore affirm the district court’s

judgment.



                                             2
                                              I.

       We recount the facts presented to the state magistrate who issued the challenged

warrant. Owens ex rel. Owens v. Lott, 

 (4th Cir. 2004). Because the

district court denied Jones’ suppression motion, we state the evidence in the light most

favorable to the government. United States v. McGee, 

 (4th Cir. 2013).

       In July 2017, Martinsburg Police Corporal E.C. Neely arrested Jones for driving

while his license was suspended. The next day, in statements made on Facebook, Jones

announced that he was “on a cop manhunt” for Neely, and requested information from

“anybody out there” regarding Neely’s whereabouts. 1

       About six months later, Jones escalated his threat. In a series of four Facebook

“posts” in January 2018, Jones declared that he was on a “manhunt” for three law

enforcement officers, all of whom he identified by name. Jones asked for information

regarding where the officers lived, stated his “need” to find them, and promised that he had

“something” for them when he did. Addressing Officer Neely in particular, Jones wrote:

“Eric Neely I feel sorry for you . . . when I find ya . . . I got something really interesting

for you.”

       About six weeks later, in February 2018, Jones expanded his online threats to

include all police officers, whom he collectively referred to as “pigs.” Writing again on

Facebook, Jones stated that no “pigs” should “come to my house at all” and that he was



       1
         Jones’ statements, as they appeared online, contained numerous spelling and
formatting errors. For the sake of legibility, we set forth Jones’ statements with those errors
corrected.
                                              3
“going to pull this trigger, bang, bye.” He also explicitly warned: “If pigs come here here

[sic] be careful.”

       Jones’ rhetoric escalated still further the following day in response to an online

article reporting a nightclub shooting involving local police. Commenting on the article in

an online post, Jones lamented the fact that the officers responding to the scene had not

“got shot,” expressed his “hope” that “all cops” would “burn in hell,” and stated that he

would have tried to “whack the pigs” if he had been the shooter. In additional comments,

Jones also admitted that he previously had vandalized a police officer’s vehicle, and that

he owned a .45-caliber handgun he had used to shoot a man at a “strip club” during a failed

drug deal.

       Three days after Jones made the above online post, law enforcement officers

conducted surveillance of Jones’ residence based on the totality of his online behavior. The

officers later obtained a warrant to search his home for evidence of terrorist threats, in

violation of 

. Upon executing the warrant, officers found hundreds

of rounds of ammunition and ammunition components.

       Jones was indicted in federal court for possession of ammunition by a felon, in

violation of 

(g). He filed a suppression motion arguing that the search

warrant facially lacked probable cause, and that the warrant affidavit failed to contain

certain material information. The district court denied Jones’ motion, holding that his

online statements established probable cause for the search warrant. The court also held

that Jones failed to make a preliminary showing that material facts had been intentionally

omitted from the warrant affidavit, and therefore denied Jones’ request for a hearing

                                             4
pursuant to Franks v. Delaware, 

 (1978). Jones entered a conditional guilty

plea to the Section 922(g) offense, preserving his right to file the present appeal.


                                              II.

       As noted above, Jones contends that the search warrant was facially insufficient to

establish probable cause for two reasons: (1) his statements did not qualify as terrorist

threats under West Virginia law; and (2) the warrant affidavit failed to establish the

required nexus between his residence and evidence of that crime. We consider these

arguments in turn.

                                              A.

       We review de novo the district court’s determination that the warrant was facially

valid, using the same standard employed by the district court. United States v. Lyles, 

 (4th Cir. 2018); United States v. Allen, 

 (4th Cir. 2011).

When examining a warrant application, a judicial officer must make a “common-sense”

determination whether the application shows a “fair probability that contraband or evidence

of a crime will be found in a particular place.” Illinois v. Gates, 

 (1983).

We afford that probable cause determination “great deference,” and ask only whether the

judicial officer had a “substantial basis” for finding probable cause. 

 (citations

omitted).

       The warrant in the present case authorized officers to search Jones’ residence for

evidence of violations of 

, which provides in relevant part that

“[a]ny person who knowingly and willfully threatens to commit a terrorist act, with or

                                              5
without the intent to commit the act, is guilty of a felony.” The statute defines the term

“terrorist act” to include any act “[l]ikely to result in serious bodily injury or damage to

property or the environment,” provided that the act is intended to:

       (i)     Intimidate or coerce the civilian population;

       (ii)    Influence the policy of a branch or level of government by
               intimidation or coercion;

       (iii)   Affect the conduct of a branch or level of government by intimidation
               or coercion; or

       (iv)    Retaliate against a branch or level of government for a policy or
               conduct of the government.

(a)(3)(A)-(B).

       Here, over the course of a dozen individual online posts, Jones declared that he was

on a “manhunt” for three different officers. He actively sought information regarding the

officers’ locations and warned all “pigs” to “be careful” if they came near his home. Jones

also stated that he owned a .45-caliber handgun, boasted that he had used the handgun to

shoot a man in the past, and asserted that he would have tried to “whack the pigs” if he had

been the shooter referenced in an online article. Finally, the warrant affidavit established

that Jones’ threats began immediately after Corporal Neely made the initial traffic stop and

arrested Jones. Under these circumstances, we hold that there was a substantial basis to

conclude that Jones had threatened acts “[l]ikely to result in serious bodily injury” that

were intended to “[r]etaliate against a branch or level of government for . . . conduct of the

government.” 

(a)(3)(A)-(B).

       Our review of West Virginia precedent confirms this conclusion. In particular, we

observe that the Supreme Court of Appeals of West Virginia (the West Virginia court) has
                                              6
held that a school custodian’s threat to “get a gun and start taking people out” if he was

required to do more work, coupled with queries to another custodian regarding “what kind

of handgun was the best,” was sufficient to sustain an indictment under the terrorist threats

statute. State ex rel. State v. Wilson, 

 (W. Va. 2017). In its

holding, the West Virginia court distinguished its earlier decision in State v. Yocum, in

which it held that a threat made against a single police officer, uttered by a person “under

arrest, handcuffed, and in the patrol car,” was insufficient to sustain a conviction under the

statute. See Wilson, 

 (quoting State v. Yocum, 

 (W.

Va. 2014)). Drawing this distinction, the West Virginia court emphasized in Wilson that

the custodian’s threat was made to “unspecified others,” not to a single officer. 

       In the present case, Jones made threats against police officers generally, as well as

individualized threats against certain named officers. Cf. id. at 463-64. And, unlike the

defendant in Yocum, Jones was not in custody or otherwise detained when he made those

threats. Cf. Yocum, 

. Under these circumstances, we hold that Jones’

threats fall within the scope of 

, as that statute has been interpreted

by the West Virginia court.

       We also hold that the warrant affidavit established a “fair probability” that evidence

of Jones’ terrorist threats would be found at his residence. Gates, 

. At the

outset, we observe that Jones’ threats expressly included a warning that “pigs” should not

“come to my house at all.” This statement suggests that Jones may have planned to carry

out one or more of his threats from his home, and therefore provides some direct evidence

linking his crime to his residence. Moreover, we long have held that an affidavit need not

                                              7
directly link the evidence sought with the place to be searched. United States v. Anderson,

 (4th Cir. 1988). Instead, the nexus requirement also “may be established

by the nature of the item and the normal inferences of where one would likely keep such

evidence.” 

       Here, for example, the magistrate reasonably could have inferred that Jones had

made his online threats from a computer located at his home. See United States v.

Richardson, 

 (4th Cir. 2010) (holding that it was reasonable to infer that

computer used to distribute child pornography was at defendant’s home). The magistrate

likewise was entitled to draw an inference that other relevant evidence, including the .45-

caliber handgun that Jones had referenced in one of his online statements, would be stored

at his residence. Anderson, 

 (holding that it is reasonable to assume

individuals keep their weapons in their homes). Finally, the affiant established through

law enforcement surveillance that the address specified in the warrant application was

Jones’ residence. Cf. United States v. Lull, 

 (4th Cir. 2016).

       We conclude that the above evidence and reasonable inferences that could be drawn

from the evidence were sufficient to establish the required nexus with Jones’ residence for

the purpose of establishing probable cause. 2 Accordingly, we hold that the warrant


       2
         We also reject Jones’ argument that the evidence sought in the warrant exceeded
the scope of the West Virginia statute, which governs terrorist threats, not terrorist acts.
The magistrate’s decision to authorize a search for the instrumentalities Jones might use to
carry out his threats was plainly reasonable. At a minimum, physical evidence indicating
a plan or ability to commit a terrorist act could be used to show that Jones, in fact, intended
his statements as threats of future violent acts. Thus, we hold that the evidence sought by
the warrant was well within the scope of 

.

                                              8
affidavit provided the magistrate with a substantial basis to conclude that Jones made

terrorist threats within the meaning of 

, and that evidence of this

crime would be found in his home.

                                              B.

       We next consider whether the district court erred in denying Jones’ request for an

evidentiary hearing under Franks v. Delaware, 

 (1978). Jones contends that

the affiant intentionally omitted from the warrant affidavit two of Jones’ online statements,

which would have undermined the magistrate’s probable cause determination.                 We

disagree with Jones’ argument.

       We assess the legal determination underlying the district court’s Franks ruling de

novo, and we review the court’s factual findings for clear error. Allen, 

.

To establish entitlement to a Franks hearing based on information omitted from the warrant

affidavit, Jones was required to make a “substantial preliminary showing” that the

omissions were intentional or reckless, and that the omitted information was material to

the magistrate’s probable cause determination. Franks, 

; United States

v. Wharton, 

 (4th Cir. 2016). For the omitted statements to be deemed

material, their inclusion must defeat probable cause. Wharton, 

.

       We assess materiality using a simple test. We insert the omitted facts into the

warrant affidavit and, examining the information contained within the “revised” affidavit,

evaluate whether there nevertheless would have been probable cause to issue the warrant.

 If the revised affidavit still establishes probable cause, the defendant is not entitled to

a Franks hearing. Allen, 

.

                                              9
       Jones identifies two statements omitted from the warrant affidavit that he asserts

entitled him to a Franks hearing. Both statements were made on his Facebook page on the

same day that he warned “pigs” to “be careful” if they came near his home and stated that

he was “going to pull this trigger, bang, bye.” In the first omitted post, Jones stated that he

hoped that a person named Dallas Adams was “burning in hell.” In the second omitted

statement, which was made about 45 minutes later, Jones wrote that he was “[g]etting ready

to pull this big trigger bang bang.” Jones argues that these statements, when understood in

context, demonstrated that he was contemplating suicide at the time he made them. Jones

accordingly argues that the two omitted statements would have defeated the magistrate’s

probable cause determination by undermining the significance of the post he made later

that day, in which he wrote that he was “going to pull this trigger, bang, bye.”

       We disagree with Jones’ contention that the omitted statements were material to the

magistrate’s probable cause determination.         At the outset, we observe that Jones’

suggestion that the magistrate necessarily would have understood his omitted statements

to reflect suicidal ideation is implausible on its face. To the contrary, in the context of the

other clear threats that Jones made against the police that same day, we agree with the

district court that Jones’ reference to “[g]etting ready to pull this big trigger” more likely

would have bolstered the magistrate’s finding of probable cause, and that the post regarding

Dallas Adams simply was irrelevant.

       Moreover, even under Jones’ reading of these omitted statements, his Franks claim

still fails. The warrant affidavit contained evidence of eleven other threatening online posts

made by Jones that were unrelated to the omitted statements that Jones has identified.

                                              10
These posts included Jones’ multiple declarations that he was on a “manhunt” for police

officers, his repeated efforts to ascertain where individual officers could be found, his

express warnings that “pigs” should stay away from his house, and his open admission to

owning a firearm that he previously had used to injure another person during a drug

transaction. Thus, even if the affidavit were revised to include the omitted statements, that

revised affidavit would have established probable cause to search Jones’ residence. See

Wharton, 

. Accordingly, we hold that Jones has failed to demonstrate

that the omitted statements were material to the magistrate’s probable cause determination

and that, therefore, the district court did not err in denying Jones’ request for a Franks

hearing. See Allen, 

-72


                                            III.

       For these reasons, we affirm the district court's judgment.

                                                                              AFFIRMED




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