Case: 11-15185 Date Filed: 07/12/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15185
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-00266-CG-C-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN ALLEN RAILEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(July 12, 2012)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Case: 11-15185 Date Filed: 07/12/2012 Page: 2 of 7
Nathan Allen Railey appeals his convictions for production and attempted
production of child pornography by a parent, in violation of 18 U.S.C. § 2251(b), and
for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On
appeal, Railey argues that: (1) the district court erred when it refused to grant his
request for a Franks1 hearing to determine whether Mobile Police Detective LaTonya
Thompson knowingly or recklessly submitted false statements in her affidavit in
support of a state search warrant that resulted in the collection of evidence later used
against him at trial; and (2) the district court erred when it determined that, even
though the warrant was unsupported by probable cause, the evidence gathered
pursuant to the search warrant was admissible against him at trial because of the
police’s reasonable, good-faith reliance on the search warrant. After thorough
review, we affirm.
We review the district court’s ruling on a motion to suppress under a mixed
standard, reviewing factual findings for clear error, and the application of law to those
facts de novo. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
While we generally review the district court’s decision not to grant an evidentiary
hearing on a suppression motion for an abuse of discretion, we need not determine
the standard of review for the denial of a Franks hearing where the more exacting de
1
Franks v. Delaware, 438 U.S. 154 (1978).
2
Case: 11-15185 Date Filed: 07/12/2012 Page: 3 of 7
novo standard of review is satisfied. United States v. Sarras, 575 F.3d 1191, 1218
n.37 (11th Cir. 2009). Furthermore, we review de novo the district court’s
determination of objective good faith, but the underlying facts on which that
determination is based are binding on appeal unless clearly erroneous. United States
v. Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003).
Under the Fourth Amendment, a “Franks” hearing must be held “where the
defendant makes a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and if the allegedly false statement is necessary to the finding
of probable cause.” Franks, 438 U.S. at 155-56. In order to be entitled an evidentiary
hearing, the defendant must allege deliberate falsehood or reckless disregard for the
truth, not mere negligence, and those allegations must be accompanied by an offer of
proof. Id. at 171. This requirement is not lightly met. See United States v. Arbolaez,
450 F.3d 1283, 1294 (11th Cir. 2006). A defendant must also show that, absent the
alleged misrepresentations or omissions, probable cause would have been lacking.
United States v. Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009).
Generally, the suppression of evidence gathered pursuant to an invalid search
warrant is appropriate when it deters police conduct that violates the Fourth
Amendment. Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 2426-27 (2011).
3
Case: 11-15185 Date Filed: 07/12/2012 Page: 4 of 7
However, evidence obtained by the police acting in reasonable, good-faith reliance
on a search warrant that is subsequently found to be lacking probable cause is still
admissible. United States v. Leon, 468 U.S. 897, 922 (1984). Regardless, the
good-faith exception to the warrant requirement will not apply when the issuing judge
was misled by information in an affidavit that the affiant knew was false or submitted
in reckless disregard for the truth. Id. at 923.
Here, the district court did not err when it declined to conduct a Franks hearing
because Railey did not make the requisite substantial preliminary showing required
to merit a Franks hearing -- that Detective Thompson knowingly, or with reckless
disregard for the truth, asserted false statements in her affidavit in support of the
search warrant. As the record shows, Detective Thompson averred in her affidavit
that (1) the victims had told their mother that their step-father, Railey, had touched
them on their vaginal area and rear-end inside and outside of their clothes; (2) the
mother believed that her ex-husband, Railey, possibly had taken photographs of her
children; (3) the mother had discovered an ink pen camera in her daughter’s
bathroom; and (4) the ink pen camera had been placed inside a toothbrush holder that
was cut for better visibility. Thompson later testified, however, that the mother had
found the toothbrush holder, with a hole cut in the middle of it, in her own bedroom
4
Case: 11-15185 Date Filed: 07/12/2012 Page: 5 of 7
(and not the daughters’ bathroom), and that Thompson’s statement that the toothbrush
holder had been cut for better visibility “was an assumption.” Railey therefore
complains that the statements in the affidavit were false because “[the mother] did not
find the pen camera in the supposed toothbrush holder. The ‘toothbrush’ holder was
located in another room not the bedroom. [The mother] found a toothbrush holder
and decided that the pen camera could be placed inside [of it].”
While Detective Thompson later admitted that she had incorrectly assumed, in
the affidavit, that the toothbrush holder had been used to house the pen camera,
Railey has made no showing, aside from a bald assertion, that Thompson inserted her
assumption with knowledge or in reckless disregard for the truth. See Arbolaez, 450
F.3d at 1294. Indeed, there is nothing in Thompson’s testimony to indicate any
knowledge or reckless disregard for the truth; instead, Thompson’s testimony shows
only that she negligently included in the affidavit a personal assumption about the use
of the toothbrush holder. Furthermore, even ignoring Thompson’s statements in the
affidavit about the toothbrush holder, the affidavit still would have contained
information obtained from the victims that a crime had been committed and that the
mother had “discovered an ink pen camera in her daughter[s’] bathroom.” Thus,
based on these unchallenged assertions in the affidavit, the state court’s probable
5
Case: 11-15185 Date Filed: 07/12/2012 Page: 6 of 7
cause determination would have been unaffected, see Kapordelis, 569 F.3d at 1309,
and the district court did not err when it determined that Railey had not made the
requisite showing to merit a Franks hearing.
Similarly, the district court did not err when it determined that the police
reasonably relied on the search warrant and affidavit in good faith. First, the district
court determined that the search warrant lacked probable cause, but for reasons other
than Detective Thompson’s misstatements -- to wit, that the state search warrant
lacked particularly because the “dots [were] not adequately connected.”
Nevertheless, the district court concluded that the evidence collected pursuant to the
invalid warrant was admissible under the good-faith exception to the exclusionary
rule, since the affidavit did provide information obtained from the victims that a
crime had been committed and that the pen-camera was found in the girls’ bathroom.
Further, as we’ve already discussed, Railey did not show that Detective Thompson
knowingly or recklessly misled the state issuing judge with her affidavit. Because
Thompson’s insertion of a personal assumption into her affidavit was, at worst,
negligent, see Leon, 468 U.S. at 923, the district court did not err when it determined
that the police reasonably relied in good-faith on the search warrant, in spite of
Thompson’s misstatements. Accordingly, we affirm.
6
Case: 11-15185 Date Filed: 07/12/2012 Page: 7 of 7
AFFIRMED.
7