NOT RECOMMENDED FOR PUBLICATION
File Name: 04a0072n.06
Filed: November 5, 2004
No. 03-4294
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
HENRY CALDWELL, ) NORTHERN DISTRICT OF OHIO
)
)
Defendant-Appellant. ) OPINION
)
Before: MERRITT, MOORE, and GILMAN, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Henry Caldwell entered a conditional plea of
guilty to possession of more than 50 grams of cocaine base (crack) with the intent to distribute, and
to possession of a firearm after having been convicted of a felony. Pursuant to Rule 11(a)(2) of the
Federal Rules of Criminal Procedure, Caldwell reserved the right to appeal the decision of the
district court that denied his motion to suppress the evidence.
On appeal, Caldwell argues that (1) the affidavit supporting the search warrant did not
provide probable cause for the search, (2) the district court erred in denying him a Franks hearing
or, in the alternative, an in camera proceeding to determine the reliability of the information source,
and (3) the district court erred in applying the Leon good-faith exception to the present case. For
the reasons set forth below, we AFFIRM the judgment of the district court.
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No. 03-4294
United States v. Caldwell
I. BACKGROUND
In April of 2002, a municipal judge in Akron, Ohio authorized a search of 136 Bachtel
Avenue, Akron, Ohio for evidence of drug trafficking. Detective A. Stump, a 22-year veteran of the
Akron Police Department, filed an affidavit in support of the application for the search warrant. He
explained in the affidavit that, over the course of one week, he had gone to 136 Bachtel Avenue
accompanied by an “information source” and that the source had, on two separate occasions, entered
the residence and made controlled purchases of crack from Caldwell. According to Stump, the
source “observed a large quantity of crack cocaine inside of the premises” during the first purchase
and, during the second purchase, “the source observed several assault type firearms inside of the
premises.”
Officers from the Akron Police Department executed the search warrant and seized a
Glock .45 caliber pistol and over 50 grams of crack from the residence in question. Caldwell was
present during the search. A grand jury returned a two-count indictment against Caldwell, charging
him with (1) being a felon in possession of a firearm, based upon his previous drug trafficking,
robbery, and felonious assault convictions, and (2) possessing crack with the intent to distribute.
Caldwell moved to suppress all of the physical evidence seized during the search. After
hearing arguments, the district court denied Caldwell’s motion. Caldwell then entered a conditional
plea of guilty to both counts of the indictment, but reserved his right to appeal the denial of his
motion to suppress. The district court entered judgment against Caldwell in September of 2003,
sentencing him to 262 months of imprisonment and 10 years of supervised release. This timely
appeal followed.
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United States v. Caldwell
II. ANALYSIS
A. Standard of review
We will set aside the factual findings of the district court in denying a motion to suppress
only if clearly erroneous, which means that “the factual findings will be overturned only if the
reviewing court has the definite and firm conviction that a mistake has been committed.” United
States v. Pinson, 321 F.3d 558, 562 (6th Cir. 2003) (citation and quotation marks omitted). The
legal conclusions of the district court, on the other hand, are reviewed de novo. Id. When reviewing
an affidavit in support of a search warrant, we consider the “totality of the circumstances” and ask
the “commonsense, practical question of whether there is probable cause to believe that contraband
or evidence is located in a particular place.” Id. (citations and quotation marks omitted). We also
accord great deference to a magistrate judge’s determination of probable cause. Id.
B. The affidavit supporting the search warrant provided probable cause
According to Caldwell, the affidavit underlying the search warrant failed to show probable
cause because the statements made by the information source were not corroborated. Caldwell
argues that “this Affidavit is even less than a barebones affidavit in that it only shows the affiant’s
naked endorsement of what his alleged source supposedly told him.” The facts, however, belie
Caldwell’s argument.
This court has held that “where a known person, named to the magistrate, to whose reliability
an officer attests with some detail, states that he has seen a particular crime and particular evidence,
in the recent past, a neutral and detached magistrate may believe that evidence of a crime will be
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found.” Pinson, 321 F.3d at 563 (emphasis in original) (quoting United States v. Allen, 211 F.3d
970, 976 (6th Cir. 2000) (en banc)). In Pinson, this court considered the sufficiency of an affidavit
similar to the affidavit in the present case. The defendant in Pinson pled guilty to various drug
trafficking offenses, conditioned upon his right to appeal the district court’s denial of his motion to
suppress the evidence seized by the police. Pinson argued, like Caldwell, that the affidavit
supporting the search warrant was a “bare bones” affidavit lacking evidence of the confidential
informant’s (CI’s) reliability.
This court held that the affidavit in Pinson provided probable cause for the search, reasoning
that the affiant stated that he knew the CI, named the CI to the magistrate, averred that the CI had
provided reliable information in the past, and noted that the CI had personally purchased cocaine
from the location at issue in the search warrant. Also significant was the fact that the affidavit
related that the officer had personally observed the CI make the controlled purchase, that he had
patted down the CI before and after the purchase, and that the substance purchased by the CI tested
positive for cocaine. Id. at 563.
The facts of Pinson are similar in many ways to those in the present case. Detective Stump
watched Akron narcotics officers pat-down the source prior to each of the two controlled purchases
to ensure that the source was not carrying any drugs or money of his own. On these two occasions,
the source, after being provided with money from the Akron Police Department, entered the
premises in question and exited shortly thereafter. Detective Stump said that upon the source’s
return from the premises, “the source delivered to affiant a quantity of cocaine that the source stated
was purchased from Henry Lamont Caldwell within the premises with the funds previously
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provided.” In addition, the source told Detective Stump that the source had observed a large
quantity of crack inside the premises during the first controlled purchase and several assault firearms
on the premises during the second controlled purchase.
The primary differences between this case and Pinson are that (1) the source here does not
appear to have been named to the magistrate, and (2) the past reliability of the source is less clear.
In Pinson, the officer attested to the CI’s reliability based upon “past information received from said
CI resulting in the lawful recovery of narcotics.” Pinson, 321 F.3d at 561. Detective Stump’s
description of the reliability of his source is not as detailed. He averred
that the information source listed in the previous paragraphs of this affidavit has
provided the affiant with information concerning the possession and sale of
controlled substances in the Akron, Ohio area, which information has been
corroborated by Detective A. Stump. Further, the information source has displayed
[] specific knowledge as to the uses, effects and distribution patterns of controlled
substances in the Akron, Summit County, Ohio area.
Although the above statement is somewhat less emphatic than in Pinson as to the reliability of the
source, there is no material difference in their legal effect, especially where the officers in both
cases actually witnessed the controlled purchases.
The fact that the informant in this case was not identified to the judge issuing the search
warrant, moreover, is not fatal to the establishment of probable cause. See, e.g., United States v.
Davidson, 936 F.2d 856 (6th Cir. 1991) (finding sufficient probable cause for a warrant even without
considering the information provided by an unidentified informant). Here, there was adequate
corroboration to counter the fact that the informant was unidentified. As this court has noted, “an
affidavit that supplies little information concerning an informant’s reliability may support a finding
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of probable cause, under the totality of the circumstances, if it includes sufficient corroborating
information.” United States v. Woosley, 361 F.3d 924, 927 (6th Cir. 2004).
An affidavit in support of a search warrant must be reviewed “in a commonsense—rather
than a hypertechnical—manner,” and this court must “consider whether the totality of the
circumstances supports a finding of probable cause.” Id. at 926. Given this standard of review and
Detective Stump’s eyewitness corroboration of the source’s controlled buys, we find no error in the
district court’s conclusion that the search in question was supported by probable cause, even though
the informant was unidentified.
C. The district court did not err in denying Caldwell a Franks hearing or, in the
alternative, an in camera proceeding
Caldwell argues that the district court erred by denying him a Franks hearing to verify the
source’s reliability. A so-called Franks hearing is based upon the case of Franks v. Delaware, 438
U.S. 154 (1978), which calls for an evidentiary hearing where a defendant raises a substantial
question as to whether the affidavit supporting the search warrant contained materially false
information. Id. at 156.
In an affidavit dated three months before entering his conditional guilty plea, Caldwell
denied that he participated in the two controlled drug purchases. He argues that this denial “makes
it clear that the likelihood is good” that no information source exists. Alternatively, Caldwell
contends that if the source does exist, then Detective Stump must have falsely characterized the
information actually provided by the source. Caldwell concludes that the allegations made against
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him in the affidavit call the reliability of the affiant and of the source into question, and that either
a Franks hearing or an in camera proceeding should have been conducted.
When a defendant seeks to demonstrate that an affidavit underlying a search warrant
contained false information, the defendant must make a substantial preliminary showing that the
affiant knowingly and intentionally, or with reckless disregard for the truth, included false
statements in the affidavit. United States v. Rodriguez-Suazo, 346 F.3d 637, 648 (6th Cir. 2003)
(citing Franks, 438 U.S. at 155-56). “‘[I]f the allegedly false statement is necessary to the finding
of probable cause,’ the court must conduct a hearing on the issue upon the defendant’s request.” Id.
(quoting Franks, 438 U.S. at 155-56). “The intentionally or recklessly false statement must be made
by the affiant [himself], not the non-governmental informant.” Id.
In Rodriguez-Suazo, this court considered an argument identical to Caldwell’s. The
defendant contended that either the confidential informant whose tip supplied the basis for the search
warrant did not exist, or that the affiant—a Detroit police lieutenant—falsified the information about
the informant in the affidavit. Id. at 647. Rodriguez-Suazo sought to attack the reliability of the CI
and the affiant by offering his own affidavit, denying the allegations against him. This court held
that Rodriguez-Suazo’s affidavit, “even if believed, does not equate to proof that the affiant lied or
was recklessly indifferent to the truth.” Id. at 648. Caldwell similarly failed to make a substantial
showing that Detective Stump knowingly and intentionally, or with reckless disregard for the truth,
included false statements in the affidavit. The district court was therefore justified in its denial of
a Franks hearing.
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Caldwell also contends, in conjunction with his argument about the Franks hearing, that he
was entitled to an in camera proceeding to verify that the affiant did not simply fabricate the source.
He relies upon the following dicta from this court’s decision in United States v. Giacalone, 853 F.2d
470 (6th Cir. 1988), to support his argument:
We believe that the trial judge should retain the discretion to determine what type of
hearing is necessary, if any, to determine the veracity of the affiant in cases where
the defendant has alleged that the affidavit contains false information, but has failed
to make a ‘substantial preliminary showing’ that the affiant has lied such as that
which would require a Franks hearing.
Id. at 478 n.1 (emphasis in original).
Caldwell fails to cite any case, however, where a court has allowed some form of an in
camera proceeding in lieu of a Franks hearing under circumstances similar to the present case. We
therefore find no error in the district court’s denial of an in camera proceeding.
D. Good faith exception
Caldwell’s final argument is that, if we should determine that the search warrant is invalid,
then the good faith exception to the exclusionary rule would not save the warrant. This argument
is based upon the case of United States v. Leon, 468 U.S. 897, 922 (1984), in which the United
States Supreme Court held that evidence obtained pursuant to a search warrant upon which the law
enforcement officers who executed the search relied in good faith will not be suppressed, even if the
warrant is later found to be invalid. Because we conclude that there was no error in the issuance of
the search warrant in question, we have no need to consider this argument.
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No. 03-4294
United States v. Caldwell
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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