United States District Court, W.D. North Carolina, Charlotte Division
ORDER
MAX O.
COGBURN, UNITED STATES DISTRICT JUDGE.
THIS
MATTER is before the Court on defendant's pro se
Motion to Quash Arrest Warrants (#42), Motion to Amend Motion
to Quash (#44), and Motion for Franks v. Delaware
Hearing (#46). The Court considers the Motion to Amend to be
a timely filed amendment to the Motion to
Quash.[1]
In the
instant motions, defendant again seeks to challenge the
issuance of the state arrest warrant in the underlying state
action. The Court has previously addressed a similar
challenge to the state arrest warrant raised in the form of a
pro se Motion to Dismiss these federal charges. Order (#38).
This time, however, defendant seeks a Franks hearing
contending that he has made a sufficient showing that such
state arrest warrant was issued based on false or inaccurate
averments made by a state officer to entitle him to an
evidentiary hearing. Apparently, the relief defendant seeks
is found in his Amended Motion to Quash the state arrest
warrant.
The
concerns expressed in this Court's earlier Order (#38)
remain. Inasmuch as the issue has now been framed under
Franks (and there is authority within the Fourth
Circuit that extends the applicability of Franks to
arrests warrants, see United States v. Colkley, 899
F.2d 297, 301 (4th Cir. 1990)), the Court finds that the
concerns raised by defendant need to be fully briefed and
resolved in advance of trial. In doing so, the Court is
mindful that Colkley involved application of
Franks in the context of an arrest warrant issued by
a federal magistrate judge on federal charges.
Here,
the patent problem with the defendant's argument is that
he attempts to challenge and have “quashed' a
state-issued arrest warrant on state charges that are not
before this Court. Indeed, it appears that defendant is under
the misapprehension that his federal charges are “due
to this Removal from State Court.” Motion (#46) at 5.
While it certainly would be arguable that evidence
seized in violation of federal rights upon an improperly
issued state search warrant should be excluded in a
subsequent federal prosecution, it is difficult to discern
how a purportedly defective state arrest warrant on state
charges would impact the prosecution of federal
charges[2]even where those charges derive from the
same conduct.[3] For example, bank robbery is a violation
of both state and federal law. The mere fact that a state
officer either lacked probable cause to arrest the suspect on
state charges as he came out the bank or secured a defective
warrant for the arrest of that suspect on state charges after
the fact has no impact on whether the United States can go to
the Grand Jury, secure an indictment for the separate federal
offense, and prosecute that same defendant on the federal
bank robbery charge.
While
the answer to the novel issue presented by defendant may be
in line with the above discussion and the conclusions reached
in the earlier Order (#38), the Court finds it appropriate to
await the government's responsive memorandum of law prior
to taking up the defendant's motions.[4] As this Court is
not privy to the discovery defendant references in his motion
(the state arrest warrant and any affidavit supporting its
issuance), those documents will need to be submitted,
[5] and
it will fall to the government to provide the Court with
those materials as exhibits to its Response.
Finally,
defendant's Motion for Franks Hearing (#46) was
filed March 4, 2019, some 14 days in advance of the scheduled
trial term. Allowing sufficient time for the government to
respond and for the Court to consider what appears to be a
novel argument, it is clear that the issues raised by
defendant will not be resolved in time for trial during the
March 2019 term. The Court will, therefore, continue this
matter from the March 2019 term to the May 2019 term and
exclude the time under § 3161(h)(1) as such motions
cannot be reached in time for trial in March despite the
exercise of due diligence.
ORDER
IT
IS, THEREFORE, ORDERED that the government file its
Response to defendant's Motion to Amend Motion to Quash
(#44) and Motion for Franks v. Delaware Hearing
(#46) not later than March 22, 2019.
IT
IS FURTHER ORDERED that this matter is continued to
the May 2019 trial calendar and the time is excluded for
Speedy Trial purposes under § 3161(h)(1) as such pending
dispositive motions cannot be reached in time for trial in
March, despite the exercise of due diligence.
---------
Notes:
[1] Putting aside the surplusage contained
in the pleading, it appears that the amendment is limited to
substituting the word typed for the word
printed.
[2] Defendant has not sought to suppress
any statements made or evidence seized incident to the state
arrest; rather, it appears that the remedy defendant seeks in
his Motion to Quash is to quash the state arrest ...