               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0602n.06

                                          No. 09-1510                                 FILED
                                                                                   Sep 10, 2010
                         UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                   )
                                            )
       Plaintiff-Appellee,                  )
                                            )
       v.                                   )       ON APPEAL FROM THE UNITED
                                            )       STATES DISTRICT COURT FOR
ARNOLD CECIL PURIFOY,                       )       THE EASTERN DISTRICT OF
                                            )       MICHIGAN
       Defendant-Appellant.                 )



Before: GIBBONS and KETHLEDGE, Circuit Judges; SARGUS, District Judge.*

       SARGUS, District Judge. Defendant-Appellant Arnold Purifoy (“Purifoy”) appeals the

decision of the District Court denying his motion to suppress evidence discovered during a search

of his condominium. Purifoy contends that evidence adduced at his suppression hearing established

that a DEA agent used recklessly or knowingly false information in an affidavit supporting the

application for the warrant to search the condominium. Purifoy further contends that if such

information were removed from the affidavit pursuant to Franks v. Delaware, 438 U.S. 154 (1978),

the remaining information would not have sufficed to establish probable cause that evidence of

criminal activity would be found at the condominium. For the reasons that follow, we AFFIRM the

decision of the District Court denying Purifoy’s motion to suppress evidence.




       *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
                                       I. BACKGROUND

       On April 24, 2008, agents of the Drug Enforcement Administration (“DEA”) executed a

search warrant at a condominium associated with Purifoy located on Alexa Drive in Commerce

Township, Michigan.       Prior to the execution of the search warrant, DEA agents had been

investigating Purifoy as the suspected leader of a cocaine trafficking organization. During the search

of the condominium, the agents discovered just under 500 grams of cocaine and various firearms,

including an assault rifle with a one-hundred-round ammunition drum. The assault rifle was found

in the same bedroom closet as the cocaine, which was stored in a safe.

       Purifoy was subsequently indicted for possessing a firearm after having previously been

convicted of a felony in violation of 18 U.S.C. § 922(g)(1), possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a), and possessing a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c). Purifoy moved to suppress the evidence found

in the condominium on the grounds that the affidavit used to obtain the search warrant contained

insufficient information to establish probable cause or on the alternative ground that the affidavit

contained information that the DEA agent knew was false, or for which the agent exhibited a

reckless disregard for the truth.

       DEA Task Force Agent Patrick DeBottis (“DeBottis”) submitted the affidavit. In the

affidavit, DeBottis averred that he had twenty-two years of experience as a police officer with over

five years working for the DEA. In a section of the affidavit labeled “Investigative Background,”

DeBottis detailed why the DEA suspected that evidence of illegal drug activity would be found at

the condominium located on Alexa Drive. In paragraph 9, DeBottis indicated that during 2008, he

had interviewed three confidential sources, identified as “DEA-1,” “DEA-2,” and “DEA-3,” who


                                                 -2-
stated that the condominium located on Alexa Drive was a drug stash and distribution center for

Purifoy’s illegal drug operation. The three confidential sources all stated that they observed

consistent, short-term vehicular activity at the condominium late at night. According to DeBottis,

such short term vehicular traffic can be indicative of illegal drug operations. DeBottis averred that

information provided to himself and other DEA agents by the three confidential sources was verified

and deemed reliable. DeBottis further averred that DEA-3 had received specific training related to

narcotics investigations.

       In paragraph 10, DeBottis indicated that he had identified Purifoy, and that the three

confidential sources all confirmed Purifoy’s identity upon being shown a photograph of Purifoy. In

the remainder of paragraph 10, DeBottis listed Purifoy’s many previous arrests, including several

arrests for drug-related offenses, and indicated that Purifoy had an outstanding arrest warrant for the

delivery and manufacture of cocaine. Paragraph 11 of the affidavit indicated that agents had

observed an individual identified as Angela Withenshaw (“Withenshaw”) frequently leaving and

entering the condominium, a sign that she was a possible drug courier. Withenshaw had previous

arrests for possession of cocaine, and her identity was confirmed by the confidential sources upon

being shown her photograph by DEA agents.

       In paragraph 12 of the affidavit, DeBottis described observation of another possible drug

courier associated with the condominium as follows:

       Agents on numerous occasions observed a 1992 Chevrolet four-door vehicle bearing
       Michigan registration BTN2782 at [] Alexa Drive. The occupant was observed in
       and out of the residence located at [] Alexa Drive on a regular basis. This was
       confirmed by DEA-1, DEA-2, and DEA-3. Affiant identified the driver of the 1992
       Chevrolet as Edward Frowner, black male, DOB: []-1952. DEA-1, DEA-2, and
       DEA-3 identified Frowner as a person who frequents [] Alexa Drive. DEA-1, DEA



                                                 -3-
          -2, and DEA-3 identified Frowner by a photograph provided by agents. An inquiry
          of Edward Frowner’s criminal history revealed Frowner had previous arrests . . . .

In the remainder of paragraph 12, DeBottis listed approximately fifteen prior arrests for Edward

Frowner (“Frowner”), each of which appears to be drug-related.

          In paragraph 13 of the affidavit, DeBottis detailed four vehicles that were utilized by

Purifoy—a 2000 Cadillac Deville registered to “Sweet Creations LLC” at the Alexa Drive

condominium; a 2000 Volvo registered to “Ideal Candy CO LLC” [sic] at the Alexa Drive

condominium; a 1997 Buick also registered to Ideal Candy Co.; and a 2002 Chevrolet Impala

registered to Melissa Kaye Smith, who was believed to be a “nominee” owner of the vehicle.

According to DeBottis, DEA agents had observed Purifoy driving the 2002 Chevrolet Impala on

several occasions, and observed Purifoy utilizing the condominium “on a regular basis both day and

night.”

          In paragraph 14 of the affidavit, DeBottis averred that a search through public and law

enforcement databases indicated that the condominium was purchased and owned by “Melvin C.

Purifoy” and that Melvin C. Purifoy was an alias of Purifoy. According to DeBottis, a check of

public databases also indicated that Melvin C. Purifoy was the registered owner of the 2000 Cadillac

Deville. In paragraph 15, DeBottis indicated that DEA-1 and DEA-2 provided information that

Purifoy bragged about changing his identity, had stated that he had burned off his fingerprints to

prevent law enforcement officers from discovering his true identity, and that he became enraged

when an individual called him by his true name. According to DeBottis, through his training and

experience, he was aware that drug-traffickers use aliases and nominee owners of assets to avoid

detection by law enforcement officers.



                                                 -4-
       Finally, in paragraph 16, DeBottis averred that on April 20, 2008, he and other DEA agents

searched a large trash container abandoned near the condominium and recovered numerous plastic

bags with cut corners, one of which contained cocaine residue, a proof of residency for “MC

Purifoy” at the condominium’s address, a piece of paper containing large numbers, a broken crack

pipe, and “Chore boy” copper screens, which can be used to smoke crack cocaine. According to

DeBottis, based on his experience, cocaine traffickers typically use plastic bags of the type

discovered to package cocaine for delivery.

       The District Court held an evidentiary hearing on Purifoy’s motion to suppress on September

4 and 11, 2008. In the record and on appeal, Purifoy has characterized this hearing as a Franks

hearing. However, as explained below, it is apparent that the District Court did not consider the

proceedings to be a Franks hearing. Among other issues, the hearing focused on paragraphs 11 and

12 of the affidavit and included testimony from DeBottis, Withenshaw, Frowner, David Arafat

(“Arafat”), and DEA Agent Ted Dosch. Withenshaw stated that she was Purifoy’s girlfriend. She

denied being a drug courier, but admitted that she had been living at the condominium at the time

the search warrant was executed. According to Withenshaw, Purifoy had been helping her kick drug

addictions as she was preparing to turn herself in to the authorities for probation violations.

       From the testimony of Arafat and Frowner, it became apparent that DeBottis had

misidentified the black male described in paragraph 12 as Frowner. Arafat testified that he lived

near the condominium associated with Purifoy and that, in February 2008, he had purchased from

Frowner the 1992 Chevrolet referred to in paragraph 12. According to Arafat, the 1992 Chevrolet

did not run properly and he left it parked in various locations throughout the condominium complex

where he lived. He never changed the title from Frowner’s name to his own before eventually selling


                                                 -5-
it to a junkyard. Arafat denied that Frowner had ever visited his home. Frowner corroborated

Arafat’s story that Frowner had sold to Arafat the 1992 Chevrolet at Arafat’s place of employment,

a liquor store. Frowner denied ever meeting Purifoy or ever having been in Commerce Township.

Frowner did, however, confirm that he had several prior drug convictions in California. Frowner

is a black male and testified that he shaved his head and usually wore a beard.

       DeBottis confirmed that Frowner was not the individual whom was described in paragraph

12 of the affidavit as a possible drug courier. According to DeBottis, a check of license plate records

indicated that the white Chevrolet parked near the condominium was registered to Frowner. Based

on this information, DeBottis was able to obtain Frowner’s photograph and concluded that a black

male who was seen near the 1992 Chevrolet talking to Purifoy was Frowner because the man, who

was also bald, resembled Frowner. DeBottis admitted that the man he thought was Frowner was of

a significantly larger build than Frowner and did not have a beard. However, there is some

indication in the record that the photograph of Frowner obtained by DeBottis did not depict Frowner

wearing a beard. (“Q. Okay. Now, you would agree, would you not, that that photograph does not

resemble in the sense that it doesn’t have - - Mr. Frowner in that particular photograph does not have

a beard? A. That is correct.”). DeBottis also admitted that despite specific averments in the

affidavit, the black male he observed was never actually seen occupying or driving the 1992

Chevrolet. DeBottis did testify, however, that the three confidential sources all believed that the man

seen frequenting the condominium was Frowner after being shown Frowner’s picture.

       The District Court denied Purifoy’s motion to suppress evidence in an opinion issued on

October 24, 2008. Of relevance to the instant appeal, the Court held that, when viewed in totality,

the facts presented in the affidavit, including “the informants’ statements, the affiant’s experience,


                                                 -6-
the results of the agents’ investigation, and the contents of the trash container,” supported a finding

of probable cause by the magistrate judge. The Court went on to note that, while the information

that Frowner was the individual seen near the condominium on several occasions was apparently

false, Purifoy failed to provide evidence that DeBottis recklessly or intentionally included the false

information in the affidavit. According to the District Court, the misidentification of Frowner “was

a plausible mistake, not reckless behavior.” The Court further found that Withenshaw’s testimony

that she was not a drug courier and merely lived at the condominium was inconsequential to

DeBottis’s state of mind in identifying her as a possible drug courier. Finally, the Court held that,

even if the information in paragraphs 11 and 12 of the affidavit were removed, the remaining

information would still have supported a finding of probable cause by the magistrate judge. In this

regard, the District Court noted that the remaining information would include that supplied by the

confidential sources, the information about Purifoy’s use of aliases, and, most significantly, the

results of the trash pull.

        As explained above, Purifoy has described the evidentiary hearing held by the District Court

as a Franks hearing. However, in examining the District Court’s decision, it is apparent that the

Court analyzed the evidence presented at the hearing under the standard that a defendant must meet

before a hearing challenging the sufficiency of an affidavit can be awarded pursuant to Franks (“If

a defendant requests an evidentiary hearing to challenge the veracity of an underlying affidavit, he

must meet the requirements established by the United States Supreme Court in Franks v. Delaware,

438 U.S. 154 (1978). . . . A so-called Franks hearing will be granted only if . . . two conditions are

met . . . .”; “Defendant has not met his burden under Franks.”). Thus, the District Court did not view

the evidentiary hearing as a Franks hearing.


                                                 -7-
       After the District Court denied his motion to suppress, Purifoy agreed to conditionally plead

guilty to the counts against him. The District Court subsequently sentenced him to a term of 262

months in prison.

                                 II. STANDARD OF REVIEW

       We review the denial by the District Court of a Franks hearing and the denial of a motion

to suppress evidence under the same standard. United States v. Graham, 275 F.3d 490, 505 (6th Cir.

2001). The District Court’s conclusions of fact are reviewed for clear error and its conclusions of

law are reviewed de novo. Id.

                                       III. DISCUSSION

       The Fourth Amendment to the Constitution of the United States provides that “no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing

the place to be searched, and the persons or things to be seized.” U.S. CONST . amend. IV. In cases

where officers of the government violate the Fourth Amendment rights of individuals in conducting

searches or seizures, the government may be prohibited from using evidence obtained during such

illegal searches or seizures against those whose rights have been violated. See generally Mapp v.

Ohio, 367 U.S. 643 (1961).

       Purifoy asserts that under the Supreme Court’s decision in Franks v. Delaware, 438 U.S. 154

(1978), the evidence found during the search of the condominium on Alexa Drive should be

suppressed. In Franks, the Supreme Court held that

       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, the Fourth Amendment requires that a hearing be
       held at the defendant's request.


                                                -8-
Id. at 155-56. Thus, under Franks, a defendant is entitled to a hearing challenging “the sufficiency

of an executed search warrant” if “(1) there is a substantial preliminary showing that specified

portions of the affiant's averments are deliberately or recklessly false and (2) a finding of probable

cause would not be supported by the remaining content of the affidavit when the allegedly false

material is set to one side.” United States v. Atkin, 107 F.3d 1213, 1216-17 (6th Cir. 1997)(quoting

United States v. Campbell, 878 F.2d 170, 171 (6th Cir. 1989))(emphasis in original).

       On appeal, Purifoy contends that the District Court erred in concluding that he had failed to

provide evidence that DeBottis had knowingly or recklessly included false information in the

affidavit, and in concluding that if the information at issue were removed from the affidavit, probable

cause to search the condominium would still have been established. We agree with the District

Court’s conclusion that Purifoy has produced no evidence that statements in the affidavit were

recklessly or knowingly false. We further agree with the District Court that, even if the allegedly

false statements, and indeed all of paragraph 12, were excised from the affidavit, the remaining

information would still support a finding of probable cause by the magistrate. Accordingly, we

affirm the District Court’s denial of Purifoy’s motion to suppress.

A. Recklessly False or Knowingly False Information

       Purifoy asserts that three factual averments made by DeBottis in paragraph 12 of the affidavit

were recklessly made or knowingly false. These averments include (1) that an individual who was

a possible drug courier for Purifoy was identified as Edward Frowner, a man with many previous

drug arrests; (2) that this man was observed “in and out” of the condominium on a regular basis, and

(3) that the man was observed driving or occupying the 1992 Chevrolet parked near the

condominium.


                                                 -9-
       From the evidence adduced at the suppression hearing, Purifoy was able to establish that the

black male seen near the condominium was not Frowner. However, Purifoy was not able to produce

evidence suggesting that DeBottis’s identification as the man as Frowner was reckless or knowingly

false. To the contrary, the evidence suggests that the misidentification was nothing more than a

reasonable mistake. For instance, the 1992 Chevrolet parked near the condominium was still

registered to Frowner because Arafat never titled the car, which he had purchased from Frowner, in

his own name. DeBottis testified that he had seen the unidentified black male, who was bald with

no beard, near the Chevrolet. Upon running the license plate of the Chevrolet, DeBottis was led to

Frowner, a black male who shaves his head, and whose driver’s license picture, which was used by

DeBottis for identification, apparently did not depict him wearing a beard as he usually did.

       DeBottis assumed that the male who resembled Frowner and who was seen standing near a

car registered to Frowner was in fact Frowner. Under the circumstances, this was a plausible

mistake. A reasonable misidentification cannot be made “recklessly” and a mistake cannot be made

“knowingly.” Thus, DeBottis’s misidentification of the male observed near the condominium was

neither reckless nor knowing.

       Purifoy next contends that the statement that the unidentified black male “was observed in

and out of the residence located at [] Alexa Drive on a regular basis” was knowingly or recklessly

false. However, as with the statements concerning the man’s identification as Frowner, Purifoy was

unable to adduce any evidence supporting this contention. DeBottis testified that he personally only

observed the man mistakenly identified as Frowner twice—once talking to Purifoy near cars parked

outside the condominium and once with Purifoy in the garage area of the condominium (while the

garage door was open). Based on this testimony, DeBottis personally did not observe the man “in


                                               -10-
and out of the residence on a regular basis.” On its face, however, the statement in question does

not reveal who actually observed this male entering and leaving the residence. At the hearing,

DeBottis testified that the confidential informants (who apparently also mistakenly identified the

man as Frowner) observed the man “in and out of the residence.” Aside from proving that this man

was not Frowner, Purifoy has not provided evidence that would contradict DeBottis’s testimony on

this point. Thus, Purifoy has not met his burden under Franks in demonstrating that the statement

in question is false, let alone that it was made recklessly or knowingly.

       Finally, Purifoy asserts that the factual averments indicating that the black male was an

occupant or driver of the 1992 Chevrolet were knowingly false. At the hearing, DeBottis testified

that he had actually never seen the black male in the 1992 Chevrolet associated with Frowner. (“Q.

. . . Did you ever actually see [the black male] in the car? A. No, I didn’t.”). If DeBottis never

actually saw the man in the car, then the statements in paragraph 12 of the affidavit that “[t]he

occupant [of the 1992 Chevrolet] was observed in and out of the residence” and [a]ffiant identified

the driver of the 1992 Chevrolet as Edward Frowner” were false to the extent they indicate that the

unidentified black male was seen driving or occupying the 1992 Chevrolet. Furthermore, there is

no evidence in the record that the confidential informants observed the unknown man occupying the

car, and, because the car was owned by Arafat and was likely not associated with the unknown man

at all, this possibility is unlikely. However, Purifoy has not produced evidence to suggest that any

false information was not the result of a simple mistake. Thus, Purifoy did not meet his burden of

making a substantial preliminary showing in this regard.

       In the end, however, the issue of whether the unidentified man was ever observed driving or

occupying the vehicle linked with Frowner is of relatively little consequence to the overall portrait


                                                -11-
painted by the affidavit. As discussed below, even if all of the statements contested by Purifoy and

indeed all of paragraph 12 of the affidavit were removed, the remaining information would still have

been sufficient for a finding of probable cause by the magistrate judge.

B. Probable Cause from the Remaining Information

        In deciding whether an affidavit establishes probable cause justifying the issuance of a search

warrant, a magistrate must find that “given all the circumstances set forth in the affidavit before him

. . . there is a fair probability that contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “When determining whether an affidavit

establishes probable cause, we look only to the four corners of the affidavit; information known to

the officer but not conveyed to the magistrate is irrelevant.” United States v. Brooks, 594 F.3d 488,

492 (6th Cir. 2010). Finally, in reviewing the affidavit, we must show great deference to the

probable cause determination of the magistrate, but at the same time “insist that the magistrate

perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.”

United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006)(quoting Aguilar v. Texas, 378 U.S.

108, 111 (1964), abrogated on other grounds by Gates, 462 U.S. 213). “When the district court

itself is a reviewing court . . . this court owes the district court's conclusions no particular deference.”

United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996).

        Purifoy attempts to characterize paragraph 12, which contains the statements that he alleges

were recklessly or knowingly false, as “the most important piece of evidence in the affidavit.” To

the contrary, the information contained in paragraph 12 is relatively insubstantial compared to other

information in the affidavit. If this paragraph were removed, the remaining information would still

have been sufficient for a finding of probable cause by the magistrate judge. Among other things,


                                                   -12-
the remaining information would include: (1) that three confidential sources (one of whom with

training in narcotics investigations), whose information was verified and deemed reliable, stated that

they believed the condominium was being used by Purifoy to stash and distribute drugs; (2) that the

three informants had observed consistent, short-term vehicular traffic outside the condominium on

Alexa Drive and that in DeBottis’s experience, such short-term traffic was consistent with illegal

drug operations; (3) that DeBottis had identified Purifoy, who had a lengthy history of drug-related

arrests, using the condominium on a regular basis and that Purifoy’s identity had been verified by

the confidential sources; (4) that the condominium was owned by “Melvin C. Purifoy,” a known

alias of Purifoy; (5) that two of the confidential sources reported that Purifoy bragged about changing

his identity, stated that he had gone so far as to burn off his fingerprints to stop law enforcement

officers from discovering his true identity, and became enraged on an occasion when someone called

him by his real name; and (6) that in a trash container on the street next to the condominium, DEA

agents discovered numerous plastic bags with cut corners—bags which, in Debottis’s experience,

were similar to bags used by drug traffickers to package cocaine for delivery—a plastic bag

containing cocaine residue, a crack pipe and materials used to smoke crack, and documentation

linking the garbage to “MC Purifoy.” This information is more than enough for a magistrate to

conclude that there was “a fair probability that contraband or evidence of a crime” would be found

at the condominium. Gates, 462 U.S. at 238.

        Purifoy contends that the information provided by the confidential sources should be

disregarded in this case because this information was not sufficiently corroborated by the DEA

agents. “When confronted with hearsay information from a confidential informant or an anonymous

tipster, a court must consider the veracity, reliability, and the basis of knowledge for that information


                                                  -13-
as part of the totality of the circumstances for evaluating the impact of that information.” United

States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). “While independent corroboration of a

confidential informant's story is not a sine qua non to a finding of probable cause, in the absence of

any indicia of the informants' reliability, courts insist that the affidavit contain substantial

independent police corroboration.”       United States v. Frazier, 423 F.3d 526, 532 (6th Cir.

2005)(citation omitted)(emphasis in original).

       Here, contrary to Purifoy’s assertions, there are specific indications in the affidavit of the past

reliability of DEA-1 and DEA-2 (“DEA-1 and DEA-2 have provided information to affiant and other

Drug Enforcement agents which was verified and deemed reliable”), and ample evidence that

information provided by all three confidential informants was corroborated by independent DEA

investigations. In this regard, DeBottis expressly stated in paragraph 9 of the affidavit that

information provided by the confidential sources during the investigation of Purifoy was confirmed

by DEA surveillance, databases, and other law enforcement information. Furthermore and perhaps

most significantly, the discovery of plastic bags of a type used in cocaine trafficking, one of which

containing cocaine residue, in garbage connected with the condominium provided the most

substantial corroboration of all of the confidential informants’ statements that the condominium was

being used for drug trafficking. See, e.g., United States v. Martin, 526 F.3d 926, 937 (6th Cir. 2008)

(“The confidential informant's minimal facts here were bolstered when the trash pull yielded cocaine

residue.”).

                                        IV. CONCLUSION

       For the foregoing reasons, the decision of the District Court denying Purifoy’s motion to

suppress evidence is AFFIRMED.


                                                  -14-
