Case: 12-11349 Date Filed: 11/21/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11349
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00183-RBD-TEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
CHARLES EDWARD LEACH,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 21, 2012)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
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Charles Leach appeals his conviction for manufacturing marijuana, in violation
of 21 U.S.C. § 841, and conspiracy to manufacture marijuana, in violation of 21
U.S.C. § 846. On appeal, Leach argues that the district court erred in denying his
motion to suppress the evidence gathered pursuant to a search of his residence,
because the agents included deliberate falsehoods and omitted material information
in applying for the search warrant. After careful review, we affirm.
We review whether an affidavit in support of a search warrant established
probable cause de novo and findings of historical fact for clear error. United States
v. Lopez, 649 F.3d 1222, 1245 (11th Cir. 2011). We construe all facts in the light
most favorable to the party who prevailed below. United States v. Ramirez, 476 F.3d
1231, 1235-36 (11th Cir. 2007).
Affidavits supporting arrests warrants are presumptively valid. Franks v.
Delaware, 438 U.S. 154, 171 (1978). For a search warrant to be valid, it must be
supported by probable cause. U.S. Const. amend. IV (providing that “no Warrants
shall issue, but upon probable cause . . . particularly describing the place to be
searched . . . .”). “A sufficient basis for probable cause for a search exists when under
the totality of the circumstances there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Lopez, 649 F.3d at 1245 (quotation
and alteration omitted). In determining probable cause, a court may consider only the
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information that had been presented to the issuing judge. United States v. Lockett,
674 F.2d 843, 845 (11th Cir. 1982). Opinions and conclusions of experienced agents
regarding a set of facts are a factor in the probable cause equation. United States v.
Robinson, 62 F.3d 1325, 1331 n.9 (11th Cir. 1995).
When considering an attack on the veracity of an affidavit filed in support of
a search warrant, the Supreme Court has held that (1) “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 (2) “if the allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request.” Franks, 438 U.S. at 155-56. If, at the hearing, the defendant
establishes the allegation of perjury or reckless disregard by a preponderance of the
evidence, and “with the affidavit’s false material set to one side, the affidavit’s
remaining content is insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.” Id. at 156.
Concerning the first Franks prong, the attack on the affidavit supporting the
warrant must contain “allegations of deliberate falsehood or of reckless disregard for
the truth,” specifically pointing out the portion of the warrant affidavit that is claimed
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to be false. Id. at 171. The allegations should be supported by an offer of proof,
including affidavits or sworn or otherwise reliable statements of witnesses;
conclusory allegations of negligence or innocent mistakes are insufficient. Id. As for
the second Franks prong, in order to be entitled to relief, a defendant must show that
the misrepresentations or omissions were material, which means that, absent the
misrepresentations or omissions, probable cause would have been lacking. United
States v. Novaton, 271 F.3d 968, 987 (11th Cir. 2001).
In this case, the district court found two inaccuracies in the affidavit: (1) that
Leach’s landlord, Nancy Savage, requested both verbally and in writing that a
security check of the residence be performed; and (2) that upon approaching the
residence to conduct the security sweep, agents could smell the odor of raw flowering
marijuana coming from the residence. Both of these statements contained in the
affidavit were in conflict with the testimony at the suppression hearing because, first,
the evidence showed that the agents had requested consent for the security check
from Savage (and not the other way around), and second, the evidence showed that
the agents had smelled marijuana immediately upon approaching the gate to the
Leach residence. Additionally, the district court identified two omissions in the
affidavit: (1) that the agents entered the residence during the security sweep and
found marijuana; and (2) that the agents saw a marijuana plant protruding from a
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garbage bag outside the fence surrounding the residence.1 The district court did not
make any specific findings about whether the inaccuracies and omissions at issue
were made knowingly or recklessly. Rather, the district court found that the affidavit
was sufficient even with the inaccuracies removed and the omissions added.
We agree with the district court. Indeed, with the challenged inaccuracies
removed and the omissions inserted, the affidavit reads this way:
Upon receiving information from Drug Enforcement Administration
Task Force Agent Daniel T. Wolfe that the suspect Charles Leach and
his wife Kerri Leach where [sic] both observed at a local growth [sic]
store purchasing items commonly used to grow marijuana on five
different occasions. [sic] The subject had previously been involved in an
indoor marijuana grow in 2007 in which Charles Leach served four
months in Federal Prison. The Leach subjects have no rental agreement
on the residence and are only living there to help out on the blue berry
[sic] farm while residing there. The utility records indicate higher than
normal usage starting on 06/23/2010 through the current date 12/1/2010.
The agents entered the residence to conduct a security sweep during
which they found marijuana. The agents also saw a marijuana plant
protruding from a garbage bag outside the fence surrounding the
residence.
Based on this version of the affidavit, Leach has not shown that, absent the
misrepresentations or omissions, probable cause would have been lacking.
1
The court also rejected as without merit Leach’s claim that the agents had intentionally
misled the state court judge by telling the judge that the pattern of electricity usage from June to
November 2010 demonstrated indoor growing cycles even though no one witnessed the Leaches
purchasing the indoor growing equipment until October 2010. However, this evidence does not
establish that the October date was the first time that they had purchased equipment and supplies
for growing marijuana. In any event, Leach does not challenge the finding on appeal, and it is
therefore abandoned. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
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For starters, the issuing judge was entitled to rely on the agents’ conclusion that
the store where the Leaches were seen purchasing equipment was considered a
“growth store,” and that the items that they were purchasing were commonly used to
grow marijuana. See Robinson, 62 F.3d at 1331 n.9. Likewise, the judge was also
correct in relying on the agents’ implication that the high utility usage indicated a
marijuana grow operation. These two facts, along with the fact of Leach’s prior
conviction, which was clearly relevant, were sufficient to show a fair probability that
evidence of marijuana cultivation would be found in the Leach residence. See Lopez,
649 F.3d at 1245; see also Robinson, 62 F.3d at 1331.
In short, because probably cause existed based on the revised version of the
affidavit, it is irrelevant whether the evidence adduced at the suppression hearing --
including the fact that Agent Wolfe could not explain why the affidavit provided that
Savage had requested the security sweep -- could indicate that the inaccurate
statements were included recklessly (the first Franks factor). Accordingly, we affirm.
AFFIRMED.
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