                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4747



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JAMAL LARONNE RAY, a/k/a Jamal Douglas,
                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:05-cr-00163-1)


Argued:   May 25, 2007                      Decided:   July 24, 2007


Before MICHAEL and DUNCAN, Circuit Judges, and Frank D. WHITNEY,
United States District Judge for the Western District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan David Byrne, Appellate Counsel, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.
Steven Ian Loew, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: Mary Lou Newberger, Federal Public Defender, George H.
Lancaster, Jr., Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Defendant-appellant Jamal LaRonne Ray a/k/a Jamal Douglas

entered a conditional plea of guilty to the crime of possession of

a firearm by a convicted felon, in violation of 18 U.S.C. §§

922(g)(1)     and   924(a)(2),    subject   to   his   right   to   appeal   the

district court’s denial of his motion to suppress two firearms

seized during a search of his home.1          Finding no error, we affirm.



                                      I.

      On May 22, 2005, after attending a high school prom, four

youths were shot to death in Huntington, West Virginia.                On July

25,   2005,    Shannon   Dennis    admitted      to   investigators   that   he

witnessed defendant commit the murders, assisted defendant in

fleeing the murder scene, and threw the murder weapon into the Ohio

River.

      Based on Dennis’s statement and other evidence, on July 26,

2005, Sergeant Rocky Johnson of the Huntington Police Department

applied to a Cabell County Circuit Judge for a search warrant of

defendant’s residence at 1891 Marshal Avenue, Huntington, West

Virginia.     Sergeant Johnson’s Affidavit and Complaint for Search

Warrant read:

      On May 22nd at approximately 0430 hours, four separate
      [sic] victims were shot to death at 1410 Charleston Ave.
      Victims were Donte Ward, Eddick Clark, Megan Poston, and
      Michael Dillon.    During the investigation, numerous
      interviews were conducted and information to believe

      1
      Defendant was sentenced to thirty-four months imprisonment
and three years of supervised release.   He does not appeal his
sentence.

                                       2
    [sic] that Ward had been shot in retaliation for taking
    a large amount of marijuana from Cherylethia “Bunny”
    Holmes. Holmes admitted to investigators that she had
    been robbed of marijuana from her apartment on Charleston
    Ave. On 7-5-05 Det. R. Knight received information from
    a co-operating witness that a Shannon Dennis bragged
    about driving a suspect vehicle involved in the homicide
    to the scene and away from the scene.        Dennis also
    bragged that he threw the murder weapon in the Ohio
    River.    On 7-25-05 Shannon Dennis gave a voluntary
    statement to detectives that he had witnessed “T” aka
    Jamal Douglas murder the four victims. Dennis admitted
    that he threw the murder weapon in the Ohio River.
    Dennis admitted that they left the area in a white 1987
    Chevy Monte Carlo with gray interior. On Friday 7-22-05
    Detective Hunter identified “T” as Jamal Douglas during
    a traffic stop in 1600 block of 9 th Ave.      The listed
    vehicle has been painted blue since the time of the
    homicides. At the time of the warrant vehicle is parked
    in front of 1891 Marshal Ave. There is an HPD police
    report from early 14 July 2005 in which Douglas was
    involved in an accident driving the listed white Monte
    Carlo 1987 model bearing WV reg 7JC-620.2

    2
      In addition to the evidence set forth in the Affidavit and
Complaint for Search Warrant, Sergeant Johnson also swore to the
following in the Search Warrant:

    On May 22nd at approximately 0430 hours, four separate
    [sic] victims were shot to death at 1410 Charleston Ave.
    Victims were Donte Ward, Eddrick Clark, Megan Poston,
    and Michael Dillon. During the investigation, numerous
    interviews were conducted and information was obtained
    that led investigators to believe that Ward had been shot
    in retaliation for taking a large amount of marijuana
    from Cherylethia “Bunny” Holmes.     Holmes admitted to
    investigators that she had indeed had marijuana taken
    from her home on Charleston Ave. On July 5 th 2005 Det.
    R. Knight received information from a co-operating
    witness that a Shannon Dennis bragged about driving a
    suspect vehicle involved in the homicide to the scene and
    to throwing the murder weapon into the Ohio River. On 7-
    14-2005 a cooperating witness provided information that
    a B/M named T or Trouble, later identified as Jamal
    Douglas, stated that he murdered the four victims over a
    drug debt owed by Ward. On 7-25-2005 Shannon Dennis gave
    a voluntary statement to Detectives that he witnessed “T”
    aka Jamal Douglas murder the four victims.         Dennis
    admitted that he threw the murder weapon in the Ohio
    River.   Dennis admitted that they left the area in a
    white Chevy Monte Carlo, 1987 model with gray interior.

                               3
Sergeant   Johnson’s    affidavit   requested   to   search   defendant’s

residence for the following evidence:

      Guns - ammo - clothing - fibers - blood - hair - personal
      items of victims, shoes, drugs - newspaper articles
      concerning the homicide - cell phones - cell phone bills
      - any documentation concerning drug transactions - money
      from drug related crimes - drug paraphernalia - indicia
      of residency - photograph of Douglas and criminal
      associates.3

      Based   upon   Sergeant   Johnson’s   application,   Cabell   County

Circuit Judge David Pancake issued the search warrant on July 26,

2005.4

      During the search of defendant’s residence, the investigators

found a .40 caliber semi-automatic pistol and a 7.62 mm rifle.

Because the warrant allowed for the seizure of evidence of “[g]uns”


      On Friday 7-22-2005 Officer Hunter positively identified
      “T” as Jamal Douglas during a traffic stop in 1600 block
      of 9th Ave. At the time Douglas listed his address as
      1891 Marshal Ave.
      3
       The Search Warrant listed the evidence sought from the search
as:

      Guns - ammo - clothing - fibers - blood - hair - personal
      items of victims, shoes, drugs - newspaper articles
      concerning the drug transactions - money from drug
      related crimes - drug paraphernalia - indicia of
      residency   -   photograph   of  Douglas   and   criminal
      associates.
      4
      Defendant contends that there was something nefarious about
Sergeant Johnson taking his application for a search warrant to a
county circuit judge at his home, a judge who did not regularly
carry a criminal docket, rather than routinely to an on-duty
magistrate. The government noted at oral argument that Sergeant
Johnson actually thought he was exercising more caution by
presenting the application to a circuit judge instead of a
magistrate. It is of no importance one way or the other so long as
the judicial official was neutral and detached. Lo-Ji Sales, Inc.
v. New York, 442 U.S. 319, 326 (1979).


                                     4
and the investigators knew defendant was a convicted felon, the

investigators seized the two weapons.



                                    II.

        Defendant raises two issues regarding the district court’s

denial of his motion to suppress:          (1) the affidavit of Sergeant

Johnson was insufficient to show probable cause that evidence of

the quadruple homicide would be located at defendant’s residence;

and (2) the affidavit intentionally mislead the judge who issued

the search warrant.

                                    A.

        Although this Court reviews de novo a district court’s legal

finding of probable cause that evidence of a particular crime may

be at a particular place, this Court’s primary duty is to ensure

that the issuing court had a substantial basis for concluding

probable cause existed.      Illinois v. Gates, 462 U.S. 213, 238-39

(1983).     Viewing the totality of the circumstances, the issuing

court    must   believe   that   there    is   “a   fair   probability   that

contraband or evidence of a crime will be found in a particular

place.”    Id. at 238. The reviewing court must give great deference
to the issuing court’s “assessment of the facts presented to [it].”

United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990).

     The question of “nexus between the place to be searched and

the items to be seized may be established by the nature of the item

and the normal inferences of where one would likely keep such

evidence.”      United States v. Anderson, 851 F.2d 727, 729 (4th Cir.


                                     5
1988), cert. denied, 448 U.S. 1031 (1989).              Specifically regarding

residences, “our cases indicate that a sufficient nexus can exist

between a defendant’s criminal conduct and his residence even when

the   affidavit    supporting     the       warrant     ‘contains       no   factual

assertions    directly    linking   the      items      sought    to    defendant's

residence.’”      United States v. Grossman, 400 F.3d 212, 217 (4th

Cir. 2005) (quoting United States v. Servance, 394 F.3d 222, 230

(4th Cir. 2005)).

      In the instant case, there was sufficient evidence of probable

cause that defendant was involved in the four homicides.                       There

was: one, Shannon Dennis’s statement to law enforcement, even if

tainted by his complicity in the murders; two, the corroborating

statement from the cooperating witness; three, the Huntington

Police   Department      (HPD)   accident      report     of     July    14,   2005,

confirming defendant drove the suspected getaway vehicle – a white

1987 Chevy Monte Carlo bearing West Virginia tag 7JC-620 – painted

blue after the homicides and the accident but before the search;

and four, at the time of the application for the search warrant,

the fact that the suspected getaway vehicle was parked in front of

defendant’s residence.

      There was also sufficient evidence of probable cause linking

defendant’s    alleged     involvement       in   the    four     homicides     with

defendant’s residence.      Even though our cases show that no direct

linkage is necessary between a suspect’s residence and the items

sought, in this case the getaway vehicle’s location in front of the

residence did provide a direct nexus.                 Even without the direct

                                        6
nexus of the vehicle, the list of items sought for seizure included

things – such as clothing, fibers, blood, and hair – which an

issuing judge could always reasonably infer would be at a suspect’s

residence.

       Beyond personal items such as clothes and beyond bodily

evidence, we also have previously held that an issuing court may

reasonably infer that a firearm and its accoutrements – a silencer

– may be stored at a suspect’s residence.                     United States v.

Anderson, 851 F.2d at 729. Nonetheless, assuming arguendo the

unlikely notion that an issuing judge could not reasonably infer
that       weapons   would   be   stored    at    a   suspect’s   residence,   the

investigators, knowing defendant was a convicted felon, could still

take custody of the weapons when they discovered them in the course

of the lawful search for clothing and bodily evidence.5

       We conclude that the issuing state court had a substantial

basis for finding probable cause and that the district court did

not err in denying the motion to suppress.6

                                           B.

       Defendant      also   argues   that       Sergeant   Johnson’s   affidavit

intentionally misled the issuing court.                 We disagree.


       5
      Although defendant contends that the investigators should not
have been looking for any weapons in the first place since Dennis
had told them that he threw the murder weapon in the Ohio River,
once again, during their lawful search for other items such as
clothing they could and should seize the weapons knowing defendant
was a felon.
       6
      Because we affirm the district court’s probable cause ruling,
we need not address the applicability of the good faith exception
raised by the government.

                                           7
     When raising a Franks v. Delaware challenge to a search

warrant affidavit, a movant by preponderance of the evidence must

show: one, “that a false statement knowingly and intentionally, or

with reckless disregard for the truth, was included by the affiant

in the warrant affidavit” and, two, that the offending information

was essential to the probable cause determination.             438 U.S. 154,

155-56 (1978); see also United States v. Shorter, 328 F.3d 167 (4th

Cir.), cert. denied, 540 U.S. 928 (2003).      We defer to the district

court to determine whether a Franks hearing is necessary, based on

a movant’s substantial preliminary showing of misrepresentation.

United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990).            When

a district court holds a Franks hearing, we review the district

court’s factual findings for clear error.       United States v. Jones,

913 F.2d 174, 176 (4th Cir. 1990).

     In the instant case, on December 15, 2005, the district court

held a suppression hearing.       After defendant made a substantial

preliminary showing at the suppression hearing justifying a Franks

hearing, the district court continued the trial date and adjourned

the suppression hearing to allow defendant time to prepare for the

Franks hearing.     On February 6, 2006, providing ample time to

defendant to prepare, the district court held the Franks hearing.

At the hearing, after the district court correctly instructed

defendant   that   defendant   had   the   burden    of   proof,   defendant

presented witnesses.

     Defendant’s      key      material     claims        of     intentional

misrepresentation involve the omission from Sergeant Johnson’s


                                     8
affidavit of two statements made by Dennis’s estranged wife –

Allison Dennis - to investigators. 7      The affidavit omitted, one,

that Allison Dennis had told investigators that Dennis “was a liar

and lied about everything” (Defendant-Appellant’s Brief at 17-18)

and, two, that she had told investigators that Dennis was with her

the day of the murders “until I went to sleep.”        Joint Appendix

(“J.A.”) at 104.

         (1)   As to the first omission – that Allison Dennis said her

husband was a liar – Sergeant Johnson’s affidavit was silent in all

respects as to the credibility of Shannon Dennis.        There was no

statement in the affidavit asserting that Dennis was a credible and

tested informant.     Thus there was no affirmative misrepresentation

about his credibility.      As the district court found as a matter of

fact:

     [I]t’s clear that there was ample information provided to
     the police, but most of it was inconsistent and
     contradictory.   The information was provided over the
     course of several weeks following the murders.

          The Court would find in this case that all of this
     conflicting information was not required to be part of
     any application for an arrest or a search warrant.

                                  * * *

          Further, the Court finds in this case that to the
     extent information was — that the primary claim here was
     that critical information was omitted, not that there was
     false information submitted to the issuing judge. That’s
     an important distinction.

     7
      Defendant also asserts that there was conflicting evidence
from other witnesses. As the district court noted, there was much
contradictory evidence.    None of that evidence, however, was
material to the assertions in Sergeant Johnson’s affidavit. Thus
it is unnecessary for us to address the other witnesses’ allegedly
conflicting evidence.

                                    9
            The Court does not see that there was anything false
       in the affidavit provided to the judge.      What was in
       there was at least literally true insofar as the
       information having been provided to the police. When
       reviewing the sufficiency of information in this context,
       there’s an important distinction between providing false
       information or omitting information.     Providing false
       information is much more likely to cause a magistrate or
       an issuing judge to be misled, much more indicative of an
       intent to mislead. I don’t see any evidence that that
       was the case here.

J.A. at 139-40.

       The district court continued, “the Court would find that the

defendant has failed to show, first, that the information was

false. . . .       Therefore the defendant can’t show that Sergeant

Johnson or others lied about Mr. Dennis and his statement. . . .

There is no evidence that [Sergeant Johnson or any investigator}

lied about his statement.”       J.A. at 141.

       We have long held that the omission of exculpatory information

is far less likely to raise a Franks inquiry than the inclusion of

false or misleading information. Colkley, 899 F.2d at 301-02. The

fact    of    omission   alone   does    not    demonstrate    intentional

misrepresentation. Shorter, 328 F.3d at 171. Even if the omission

was    intentional   misrepresentation,    a   movant   only   prevails   if

inclusion of “the omitted fact . . . would have negated probable

cause.”      Id.
       Furthermore, although Dennis’s statement was tainted in the

one respect that he could have been trying to shift blame for the

murders to defendant, his statement was reliable in the other

respect that he was admitting to being an accomplice in a quadruple

murder.       United States v. Harris, 403 U.S. 573, 583 (1971).


                                    10
Issuing       courts    must     tolerate    the     possible     inaccuracy      of    an

informant’s       evidence       so   long    as     the    issuing     court   is     not

deliberately misled.            Colkley, 899 F.2d at 303.

      Finally,         while    Dennis’s     statement      was   the    single      most

important evidence in the affidavit, adding to the affidavit that

Dennis was a suspected liar would not have negated probable cause

since     a    separate        cooperating        witness   corroborated        Dennis’s

statements.

      (2) As to the second omission – that Allison Dennis told

investigators that Dennis was with her the day of the murders – the

evidence at the Franks hearing also showed that Allison Dennis told
the investigators in the same interview that she was really not

certain that Dennis was with her that day because they had been

“split up for a while.”           J.A. at 108.       In fact, she admitted during

cross-examination in the Franks hearing that they had “split up

because Shannon [Dennis] was on drugs pretty bad at that time.”

Id.

      Since Allison Dennis herself was inconsistent in her statement

to the investigators, as the district court found, her inconsistent

statements simply did not need to be included in the affidavit.

      The district court was not clearly erroneous in finding that

the omitted statements were not intended to mislead and deceive the

issuing court.

      Accordingly,         we    affirm     the     district    court’s    denial      of

defendant’s motion to suppress.

                                                                                AFFIRMED

                                             11
