                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0062n.06

                                           No. 09-5974

                             UNITED STATES COURT OF APPEALS                             FILED
                                  FOR THE SIXTH CIRCUIT                             Feb 01, 2010
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF TENNESSEE
                                                         )
JIMMY FOX,                                               )                          OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        KENNEDY, COLE, and GRIFFIN, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Jimmy Fox appeals the district court’s decision

not to suppress evidence obtained during a search of the home he shared with his girlfriend Kelly

Leonard. Fox contends that the magistrate judge lacked probable cause to issue the search warrant.

We AFFIRM.

                                      I. BACKGROUND

       Following a several month investigation into a large-scale marijuana trafficking organization

operating in East Tennessee, Drug Enforcement Administration Special Agent Michael E. Templeton

sought a warrant to search Leonard’s 1 home and surrounding area. In support of the search warrant,

Templeton filed a thirty-seven-page master affidavit (not including photographs), which also


       1
          Leonard has been indicted in a separate case for her alleged involvement in the marijuana
trafficking conspiracy.
No. 09-5974
USA v. Jimmy Fox

supported a request to search eleven additional locations. At the time of the application, Fox was

an elected county Constable and Reserve Deputy. The affidavit was largely based on information

provided by a proven confidential informant that Leonard was one of the organization’s distributors,

including an observed meeting between the informant, the drug trafficking ring leader, Leonard, and

Fox, during which the ring leader made plans to trade drugs for Fox’s motorcycle.

       A magistrate judge granted Templeton the search warrant on July 3, 2008, and it was

executed four days later. Authorities seized, from both the home and Fox’s vehicle, two digital

scales, two firearms with ammunition, a photograph of Fox smoking marijuana, and user quantities

of marijuana and hashish. Leonard told agents that both she and Fox were regular marijuana users;

Fox confirmed that he was a marijuana user and had been so for more than a year.

       A grand jury indicted Fox with being an unlawful user or addict of a controlled substance in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). He moved to suppress

the seized evidence, claiming that the warrant was not supported by probable cause. The magistrate

judge issued a Report and Recommendation (“R&R”), recommending that Fox’s motion be denied.

The district court affirmed and adopted the R&R, finding that the motion to suppress should be

denied on two alternate grounds: first, the search was supported by probable cause, and second, even

if probable cause had not been established, the Leon good faith exception applied. See United States

v. Leon, 468 U.S. 897, 922 (1984) (“We conclude that the marginal or nonexistent benefits produced

by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated

search warrant cannot justify the substantial costs of exclusion.”). Fox entered a guilty plea,



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No. 09-5974
USA v. Jimmy Fox

reserving his right to appeal the district court’s denial of his motion. The district court sentenced

Fox to five months incarceration followed by three years of supervised release.

        This appeal followed.

                                           II. ANALYSIS

        Fox appeals the denial of his suppression motion, claiming that the warrant authorizing the

search of the house he shared with Leonard was not supported by probable cause. We need not reach

this issue, however, because it is one of two alternative grounds on which the district court based its

decision. Fox failed to challenge the district court’s second ground, the Leon good faith exception.

Two isolated sentences in an opening brief that make cursory reference to an officer’s reasonable

actions are not enough to constitute an argument. See McPherson v. Kelsey, 125 F.3d 989, 995-96

(6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible

argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”) (quotation marks

omitted) (alteration in original).

        Since the district court’s ruling on the good faith exception sufficed to justify its denial of

Fox’s motion to suppress, Fox’s failure to appeal that aspect of the court’s decision means the denial

of the motion still stands. See Elite Sportwear Prods., Inc. v. N.Y. Life Ins. Co., 270 F. App’x 153,

154 (3d Cir. March 18, 2008) (“[W]e . . . will affirm because these unappealed aspects of the District

Court’s decision represent an adequate and independent ground for [the district court’s judgment].”).




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No. 09-5974
USA v. Jimmy Fox

       Fox additionally tries to argue that the search warrant did not authorize the search of his car

because it failed to particularly describe the vehicle. This argument, however, is also waived

because Fox failed to object to the R&R’s analysis that the search of his car was proper. See United

States v. Miller, 227 F. App’x 446, 452 (6th Cir. March 28, 2007) (citing Thomas v. Arn, 474 U.S.

140, 142 (1985)).

                                       III. CONCLUSION

       For these reasons, we AFFIRM the district court’s denial of Fox’s motion to suppress.




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