                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0019n.06

                                            No. 17-2176

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


 UNITED STATES OF AMERICA,                        )      ON APPEAL FROM THE UNITED
      Plaintiff-Appellee,                         )      STATES DISTRICT COURT FOR THE
                                                  )      WESTERN DISTRICT OF MICHIGAN
           v.                                     )
                                                  )
 MARK ALVIN HAMPTON, SR.,                         )      OPINION                       FILED
                                                  )                             Jan 14, 2019
     Defendant-Appellant.
                                                  )                         DEBORAH S. HUNT, Clerk


BEFORE: SILER and KETHLEDGE, Circuit Judges; OLIVER, District Judge.*

       OLIVER, District Judge. Mark Alvin Hampton, Sr. (“Hampton”) was indicted on one

count of being a felon in possession of 40 firearms, in violation of 18 U.S.C. § 922(g)(1), and one

count of possession of a silencer, in violation of 26 U.S.C. § 5861(d). Hampton filed a motion to

suppress evidence seized pursuant to a search warrant executed at his residence on January 28,

2016, contending that the warrant failed to establish probable cause. The district court held a

hearing on the motion on June 2, 2017, after which it denied the motion. Thereafter, Hampton

entered a conditional guilty plea to the felon in possession of firearms count, reserving the right to

appeal the denial of his motion to suppress. He now appeals the denial of that motion. For the

following reasons, we AFFIRM the district court’s judgment.




       *
        The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 17-2176, United States v. Hampton

                                                 I.

       On September 11, 2015, Mark Hampton’s father passed away of kidney failure. Up until

his death, Hampton cared for his father at their home in concert with hospice care. About five

hours after his father’s death, Dave Hampton (“Dave”), Hampton’s half-brother, filed a report with

the county’s protective services office indicating that he believed that Hampton had overmedicated

their father with morphine. The report was referred to the local police department. The police

conducted a thorough investigation, including interviews with Hampton, Dave, and a hospice

nurse. The hospice nurse, a friend of Hampton’s, reported that Hampton asked her to come to the

house the night before his father died. She explained that she became aware that there was an

argument over the administering of morphine wherein Hampton’s family members did not want

morphine to be administered, but Hampton administered it anyway. The nurse reported that, based

on her observations, their father did not appear to be overmedicated.

       On October 2, 2015, the police obtained a blood sample from the deceased father and sent

it to the county’s medical examiner for testing. The medical examiner’s report concluded that the

level of morphine in the father’s blood would not cause death and that there was no foul play. On

October 6, the county prosecutor concluded that there was no suspicion of any criminal act.

       On October 23, 2015, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

received a telephone call from a person described as “a cooperating individual” (i.e., an informant)

who maintained that he personally observed between 25 and 30 firearms stored in gun cabinets in

Hampton’s residence and that he knew that Hampton regularly carried a handgun on his person

and in his vehicle. The informant also stated that he had a personal relationship with Hampton,

had been at Hampton’s residence numerous times over the years and had visited there as recently

as September 2015. In addition, the informant indicated that between March and April 2015, he



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No. 17-2176, United States v. Hampton

used his cellular phone to take photos of several of the firearms at Hampton’s residence. He

eventually turned the photos over to the ATF. The informant’s tip was significant because a

background check showed that Hampton had two prior felony convictions.

       After receiving the tip, an ATF agent researched the records of the Michigan Department

of Natural Resources (“DNR”) and discovered that Hampton had purchased 58 hunting licenses

between 2011 and 2015. According to the ATF agent, most of the licenses would require the use

of a firearm to hunt the animals. The ATF agent also discovered that, on September 19, 2015,

Hampton purchased licenses, and obtained endorsements, to hunt turkey, antlerless deer,

waterfowl, woodcock, sharp tailed grouse, and migratory birds. Four days later, Hampton

purchased a Federal Duck “eStamp” which, according to the DNR, permitted him to hunt geese.

This stamp remained valid until February 14, 2016.

       ATF Special Agent Mark Semear (“Agent Semear”) prepared an affidavit in support of the

warrant application to search Hampton’s residence. Although Agent Semear identified the

informant in the affidavit as a “cooperating individual (CI),” he was then aware that the informant

was Hampton’s half-brother, Dave. Agent Semear was also aware of the details and results of the

prior investigation based on Dave’s suspicion that Hampton was overmedicating their father.

       On January 25, 2016, Agent Semear presented a search warrant application, including the

above-referenced affidavit and Hampton’s criminal history, to a United States Magistrate Judge.

Agent Semear did not include the information regarding the prior investigation. Based on the

information in the application, the Magistrate Judge authorized a search warrant to search

Hampton’s residence for firearms, ammunition, and other evidence of possession of a firearm, in

violation of 18 U.S.C. 922(g). On January 28, 2016, the ATF executed the search warrant and

seized several firearms from Hampton’s house.



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No. 17-2176, United States v. Hampton

       A federal grand jury returned an indictment charging Hampton with: (1) being a felon in

possession of a firearm; and (2) possession of a firearm silencer, which was not registered to him.

On April 6, 2017, Hampton filed a Motion to Suppress Evidence, contending that the search

warrant affidavit failed to establish probable cause for the search because the information was

stale. He also requested a hearing, pursuant to Franks v. Delaware, 438 U.S. 154, 171 (1978)

(a “Franks hearing”), based on Agent Semear’s omission of the prior investigation. The district

court held a hearing regarding the Motion on June 2, 2017. (R. 45.) The district court concluded

that all relevant factors weighed against a finding of staleness, that Hampton had not made a

“preliminary showing” to justify a Franks hearing, and that there was “sufficient probable cause

under the totality of the circumstances to support the issuance of the warrant.” (R. 45, PageID.300–

09.) Thus, the district court denied his Motion.

       Thereafter, Hampton entered a conditional plea of guilty to being a felon in possession of

firearms and the government dismissed the charge related to the unregistered possession of a

firearm silencer. As part of his plea, Hampton specifically reserved the right to challenge the

district court’s denial of his Motion to Suppress Evidence. On September 25, 2017, judgment was

entered against Hampton, and he was sentenced to 66 months’ incarceration, to be followed by

two years of supervised release. Hampton now appeals the district court’s denial of his motion to

suppress.

                                                   II.

       On appeal of a motion to suppress evidence, this court reviews the lower court’s findings

of fact for clear error and its conclusions of law de novo. United States v. Young, 847 F.3d 328,

342 (6th Cir. 2017). The same standard of review is applicable to a district court’s denial of a

Franks hearing. Id. at 348. A district court’s finding that a search warrant affidavit provided



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No. 17-2176, United States v. Hampton

probable cause is a legal conclusion that is reviewed de novo. United States v. Brown, 732 F.3d

569, 572 (6th Cir. 2013). This court accords a magistrate judge’s decision to grant a search warrant

great deference, but a district court’s conclusion in reviewing the magistrate’s determination are

afforded no particular deference. United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010).

Therefore, this court may reverse a decision to grant a warrant only if the issuing magistrate judge

arbitrarily exercised her or his authority. Brown, 732 F.3d at 573.

       Lastly, the decision to “hold [a Franks] hearing based upon a challenge to the validity of a

search warrant’s affidavit, given alleged misstatements and omissions, is committed to the sound

discretion of the district court.” Young, 847 F.3d at 348.

                                                III.

       A.      Staleness of Information.

       Hampton argues that the district court erred when it concluded that the information within

the affidavit was not stale and upheld the magistrate judge’s determination that there was probable

cause to search his residence.

        First, to establish probable cause sufficient to justify the issuance of a search warrant, the

applicant seeking the warrant must submit an affidavit to the magistrate that establishes “a fair

probability that contraband or evidence of a crime will be found in a particular place.” United

States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)). Fair probability depends on the totality of the circumstances. Brooks, 594 F.3d at 492.

When a specific location is to be searched, “the affidavit must establish ‘a nexus between the place

to be searched and the evidence to be sought.’” Id. (quoting United States v. Carpenter, 360 F.3d

591, 594 (6th Cir. 2004) (en banc)). The critical inquiry in determining whether a search is

warranted is whether there is reasonable cause to believe that the specific things the agents seek to



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No. 17-2176, United States v. Hampton

search for and seize are located on the property to which entry is sought. Id. at 492–93 (citing

United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005)). Further, in establishing probable

cause, “the affidavit may not employ stale information.” Id. at 493 (quotation marks omitted).

       Staleness depends on the nature of the crime. Id. The purpose of the staleness test is “not

to create an arbitrary time limitation within which discovered facts must be presented” to the court

issuing a search warrant. United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998). Instead of

solely “counting days on a calendar,” judges should consider numerous factors, including:

(1) whether the character of the crime is a chance encounter or continuous in nature; (2) whether

the suspected criminal is nomadic or entrenched; (3) whether the evidence to be seized is

perishable or enduring; and (4) whether the place to be searched is a mere forum of convenience

or secure operational base. Id. After applying these factors, it may be possible for a magistrate

judge to properly infer that evidence of wrongdoing still exists on the premises and find sufficient

probable cause to issue a warrant, even if a significant period of time has elapsed. Id.

       Hampton does not dispute the district court’s conclusions that: (1) guns are durable goods;

(2) firearm possession is continuing in nature; (3) Hampton was not nomadic; and (4) the home to

be searched was a secure operational residence. Rather, Hampton claims that the district court

erred in its “interpretation of the affidavit as to when the confidential informant had last seen the

firearms.” (Appellant Br. 12.)

       Hampton argues that a “commonsense” reading of the affidavit indicates that the only

evidence that could possibly support probable cause were the photos of firearms that the informant,

his half-brother, captured on his cellular phone, nearly ten months prior to the actual search. (Id.)

Thus, Hampton concludes that the evidence is stale because too much time had passed for the

informant’s information to be reliable. In response, the government argues that it was reasonable



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No. 17-2176, United States v. Hampton

for the magistrate judge to infer that the informant’s reference to a September 2015 visit to

Hampton’s house, only four months prior to the search, was when the informant last saw firearms

at Hampton’s house.

       This court reviews an affidavit based on “a ‘totality of the circumstances’ determination,

rather than a line-by-line scrutiny.” United States v. Greene, 250 F.3d 471, 479 (6th Cir. 2001)

(quoting United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000)). Therefore, we agree with the

district court’s finding that, although the affidavit did not expressly state that the informant had

seen firearms on his most recent visit, it was reasonable for the Magistrate to infer that he had. (R.

45, PageID.301.) Indeed, if the informant had not seen firearms on his most recent visit, it is

reasonable to infer that he would have said so. A reasonable interpretation of the reference to a

September visit is that the informant was attempting to signal to the ATF agent that he saw firearms

on that date.

       Further, even if the Magistrate Judge had entirely disregarded the informant’s mention of

a September 2015 visit, the Magistrate Judge would not have acted arbitrarily in finding probable

cause. See, e.g., United States v. Vanderweele, 545 F. App’x 465, 469 (6th Cir. 2013) (concluding

that it was reasonable for the Magistrate court to find that the affidavit’s information was fresh

enough to supply probable cause, even though it was seven months old); United States v.

Lancaster, 145 F. App’x. 508, 513 (6th Cir. 2005) (finding two-year-old information that the

defendant in the case was seen firing a machine gun was not stale). In this case, the evidence was

supported by an informant who had a personal relationship with Hampton, visited Hampton’s

residence on several occasions, and took pictures of the guns that the informant and the affiant

declared were primarily used for hunting. The affidavit explained that since 2011 Hampton

purchased more than 58 licenses to hunt various animals and, based on the affiant’s training and



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No. 17-2176, United States v. Hampton

experience, most hunters used a firearm to hunt the types of animals endorsed in Hampton’s

hunting licenses. In addition, the affidavit disclosed that the most recent license, which allowed

Hampton to hunt geese, was purchased on September 23, 2015, and was valid until February 14,

2016—twenty days after the search warrant application was submitted. Corroboration of an

informant’s tip through other sources of information can provide a substantial basis for finding

probable cause. See Illinois v. Gates, 462 U.S. 213, 245 (1983).

       We find that the Magistrate Judge did not arbitrarily exercise his authority in granting the

government’s warrant to search Hampton’s residence for firearms, because even if the informant

had not mentioned that he had recently visited Hampton’s home in September, the Magistrate

Judge could still reasonably infer from the remaining information provided to him that guns would

likely be found at Hampton’s house. See id. at 240.

       B.      Franks Hearing.

       Hampton also contends that the district court erred in denying his request for a Franks

hearing. According to Hampton, if the affidavit had included information surrounding the prior

investigation initiated by his half-brother, the Magistrate Judge could not have found probable

cause to issue the search warrant. In Franks, the Supreme Court established a procedure for

defendants to argue that their warrant affidavits contain misrepresentations that undermine the

finding of probable cause. 438 U.S. at 171. To be granted a Franks hearing, “[t]here must be

allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must

be accompanied by an offer of proof.” Id. However, if there remains sufficient content in the

warrant affidavit to support a finding of probable cause, after the material that is the subject of the

alleged falsity is set to one side, then no Franks hearing is required. Id. at 171–72. In other words,

the alleged false statement must have been necessary to the finding of probable cause.



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No. 17-2176, United States v. Hampton

       In Mays v. City of Dayton, this court explained that a Franks hearing is also justified when

there has been a material omission in an affidavit. 134 F.3d 809, 815 (6th Cir. 1998). However,

the standard to obtain a Franks hearing for a material omission is higher than a false statement and

is only merited in rare cases. Id. When there is a material omission of fact, a Franks hearing is

granted only if the defendant “makes a strong preliminary showing that the affiant with an intention

to mislead excluded critical information from the affidavit, and the omission is critical to the

finding of probable cause[.]” Id. at 816 (emphasis in the original). What makes this burden more

onerous than the inclusion of a false statement is that the defendant must show that the affiant

omitted facts with the intention to mislead the magistrate judge. Id.

       Hampton maintains that Agent Semear’s omission was a critical omission. Hampton argues

that the circumstances surrounding the omission should have been enough to provide a substantial

showing that the omission by Agent Semear was with the intent to mislead and that the informant’s

lack of “credibility should have been sufficient to call for a Franks hearing.” (Appellant Br. 15–

17.) The government claims that the reason Agent Semear did not include information about the

prior investigation in the affidavit was to protect the identity of the informant, not to mislead the

Magistrate Judge. The district court concluded that Hampton failed to show that the omission was

designed to intentionally mislead the Magistrate Judge. We agree. There is no evidence that

suggests the affiant omitted the report intending to mislead the Magistrate, and Hampton certainly

has not made the requisite “strong preliminary showing” of an intent to mislead.

       Further, the omission regarding the alleged foul play was immaterial to determining

probable cause. Not all information in the affiant’s possession need be included in the warrant

affidavit. United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992). An omission is material if it

casts doubt on the existence of probable cause. See id. Hampton contends that his half-brother’s



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No. 17-2176, United States v. Hampton

only reason for reporting about his firearm possession was because his half-brother was dissatisfied

with the outcome of the investigation of their father’s death. Hampton maintains that had the

affidavit disclosed that his half-brother, the informant, was motivated by anger and animosity, the

Magistrate Judge could not have found probable cause. However, there was no evidence that

Hampton’s half-brother fabricated or lied, or did anything else, to otherwise undermine his own

credibility. He merely had suspicions that Hampton was overmedicating their father and decided

to report it. The inclusion of the animus between Hampton and his half-brother would not have

cast doubt on the existence of probable cause, given the depth of the remaining information in the

affidavit. Thus, Hampton has not made a strong preliminary showing that the omission was made

with the intention to mislead the Magistrate Judge nor that it was critical to a finding of probable

cause. Mays, 134 F.3d at 816; Young, 847 F.3d at 349 (finding “there was sufficient content in the

affidavit regardless of whether [the] information was included or not[]”).

       C.      Lawful Hunting Permits.

       Lastly, Hampton claims that the district court “erroneously placed significant weight on

the existence of [his] hunting licenses” and that the Magistrate could not have found probable

cause on them alone. (Appellant’s Br. at 21–23.) Hampton argues that “[t]he fact that [he] had

purchased a hunting license does not sufficiently support the premise that he had firearms at his

residence.” (Id.) Hampton relies on United States v. Bennett, 285 F. Supp. 2d 978, 983 (E.D. Mich.

2003), where the district judge explained that the fact that the defendant had purchased a hunting

license a year prior to the search was insufficient to establish probable cause. Id. at 981–83.

       Bennett is easily distinguished from the present case. In Bennett, the affidavit was based

on (1) the issuance of a single hunting license; and (2) that the defendant had failed in his attempt

to legally obtain a firearm. The Magistrate Judge credited the affiant’s belief that “firearms were



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No. 17-2176, United States v. Hampton

relatively easy to obtain from individuals who were not licensed to sell or distribute firearms” and,

therefore, found probable cause. Id. at 981. On review of the Magistrate’s determination, the

district court judge noted that there was no evidence in the affidavit suggesting that the defendant

ever owned or possessed a firearm, only that he attempted, but failed, to obtain one. Id. at 982.

Therefore, the district court judge concluded that the affidavit was insufficient to establish

probable cause. Id. However, before doing so, the court made clear that “if there was any evidence

put forth in the affidavit that [the defendant] ever owned a gun, it might be reasonable to infer that

he still kept it in his house.” Id. (citing United States v. Yates, 132 F. Supp. 2d 559, 565 (E.D.

Mich. 2001)).

       Here, the affidavit included, inter alia, (1) a statement from an informant that he had

visited Hampton’s residence on several occasions and seen firearms; (2) pictures of guns in

Hampton’s residence; and (3) a statement that Hampton had recently purchased a hunting

license—that was valid on the day the warrant application was submitted—that likely required the

use of a firearm to hunt the animal described therein. Furthermore, the more than 58 hunting

licenses described in the affidavit bolster the information provided by the informant and support

an inference that Hampton was in possession of firearms. See Bennett, 285 F. Supp. 2d at 983.

       Therefore, we hold that (1) the Magistrate Judge did not arbitrarily exercise his authority

in granting the government’s search warrant; and (2) that the district court did not err in denying

Hampton’s motion to suppress and his request for a Franks hearing. For the foregoing reasons, we

AFFIRM the district court’s judgment.




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