                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 15-1319
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                THOMAS CLAY WADE,
                                             Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                         (D.C. No. 2-10-cr-00201-001)
                     District Judge: Hon. Joy Flowers Conti
                                ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    October 5, 2015
                                   ______________

           Before: SHWARTZ, KRAUSE, and GREENBERG, Circuit Judges.

                                 (Filed: October 6, 2015)
                                     ______________

                                        OPINION
                                     ______________

SHWARTZ, Circuit Judge.


       
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Thomas Clay Wade appeals from his firearm and cocaine convictions, contending

that the District Court should have granted his request for a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978), and granted the motion to suppress his statements to the

police that he claims were tainted by his earlier unlawful detention. We reject these

arguments and will affirm.

                                             I

       A confidential informant (“CI”) informed Pittsburgh police officers that he could

buy narcotics at locations in the Lawrenceville, Pennsylvania area, including a house at

3828 Penn Avenue (“the house”), where a man known to the CI as “Spider” resided.

Supp. App. 167. The police determined that Spider was Wade.

       Officers William Churilla and Kevin Merkal arranged to have the CI make a

controlled purchase of crack cocaine from Wade at the house on January 27, 2010. In the

presence of both Churilla and Merkal, the CI used his cellular phone to call Wade to

arrange the purchase of $50 of cocaine. After the call, the CI told the officers that “Wade

told him to hit him up when he got there,” which Churilla understood to mean that Wade

wanted the CI “[t]o call him when [the CI] was close to [Wade’s] house.” Supp. App.

174. Churilla then drove the CI to a location near the house, while Merkal separately

drove “to a location . . . where he would have an unobstructed view of the residence.”

Supp. App. 173. According to Churilla, Merkal then saw the CI “get on the phone, make

a phone call, [and] get off the phone,” and then saw Wade emerge from the house and

                                             2
conduct a transaction with the CI. Supp. App. 176. Merkal testified that he “believe[d]

[the CI] made a phone call to let [Wade] know that [the CI] was there,” although he was

“not sure what happened or if [Wade] answered or not.” Supp. App. 246. The substance

the CI had purchased from Wade was crack cocaine.

       The next day, Churilla obtained a search warrant for the house. The facts set forth

in the affidavit were generally consistent with the facts set forth above, although the

affidavit did not mention a second phone call between the CI and Wade. Rather, the

affidavit stated that “the [CI] never stopped to talk with any one [sic]” while walking

from the car to Wade’s house, and that “[w]hen the [CI] made his/her way to the corner

of 39th and Penn, Officer Merk[a]l saw Thomas Wade exit” the house. Supp. App. 89.

       That same day, Churilla and other officers executed the search warrant. Two

miles from the house, one officer, David Lincoln, saw Wade riding in the passenger seat

of his car. Lincoln contacted Churilla, who told Lincoln to detain Wade. Lincoln pulled

over Wade’s car approximately 1.5 miles from Wade’s house, told Wade to exit the car,

patted him down, and told him to wait, claiming that he was checking for outstanding

warrants. After approximately fifteen minutes, Churilla informed Lincoln that officers

had discovered contraband at the house, and Lincoln arrested Wade.

       At the police station, Churilla met with Wade, told Wade he was under arrest, and

read him his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Wade signed a

written waiver of his rights and agreed to speak to the police without a lawyer. At that

                                              3
point—approximately two hours after Wade’s fifteen-minute detention during the

execution of the search warrant—Wade confessed to selling crack cocaine from his

residence and stated that the shotgun the officers had found there belonged to someone

else. Wade also gave the officers his phone number, which was the same number the CI

told them Wade used.

         A federal grand jury returned a two-count indictment charging Wade with

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and

possession with intent to distribute five grams or more of cocaine base, in violation of 21

U.S.C. § 841. Wade moved for a Franks hearing, arguing that Churilla’s affidavit

omitted information regarding the CI’s reliability and that his phone records were

inconsistent with the affidavit’s description of the CI’s communication with Wade. He

also moved to suppress his post-arrest, post-Miranda statements, arguing that they were

derived from Lincoln’s unlawful detention of him while other officers were searching his

house.

         After an evidentiary hearing, the District Court denied both motions. With respect

to the Franks hearing, the District Court found that Wade had failed to make the

substantial preliminary showing necessary to be entitled to such a hearing, as nothing

Wade presented supported a conclusion that the affidavit was false, and any uncertainty

regarding whether the CI called Wade a second time—or whether the CI even existed—

could be explained and would not be inconsistent with the phone records Wade provided.

                                              4
With respect to the motion to suppress Wade’s statements, the District Court held that

Lincoln’s detention of Wade during the execution of the warrant to search his home was

lawful under Michigan v. Summers, 452 U.S. 692 (1981), and that even if the detention

was unlawful, Wade’s statements should not be suppressed, as intervening events

between the detention and the statements defeated Wade’s argument that his statements

were “fruit of the poisonous tree.” App. 23.

       Following the appointment of new counsel and the Supreme Court’s limitation of

Summers in Bailey v. United States, 133 S. Ct. 1031 (2013), Wade again moved for a

Franks hearing and to suppress his statements, and the District Court held an additional

hearing and again denied his motions. With respect to the Franks hearing, the District

Court again found that Wade “failed to present any evidence beyond speculation and

conclusory allegations to show that any specific statement made in the affidavit was

false.” App. 45. With respect to the suppression of Wade’s statements, the District Court

noted a change in the law: between its two rulings, the Supreme Court had decided

Bailey, which limited law enforcement officers’ ability to detain individuals incident to

the execution of a search warrant to the immediate vicinity of the premises being

searched. Although the District Court concluded (and the Government “appear[ed] to

concede”) that Lincoln’s initial stop of Wade was therefore illegal under Bailey, App. 47,

it reiterated its conclusion that Wade’s statements were separated from the stop by

intervening events and were not fruit of the poisonous tree.

                                               5
       Wade proceeded to trial, and a jury convicted him on both counts. Wade appeals,

challenging only the denial of his request for a Franks hearing and the denial of his

motion to suppress.

                                             II1

                                              A

       We first address the District Court’s conclusion that Wade was not entitled to a

Franks hearing. In Franks, the Supreme Court held that the Fourth Amendment requires

an evidentiary hearing to be held at the defendant’s request when: (1) 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) “the allegedly false statement is necessary to the finding of

probable cause.” 438 U.S. at 155-56. To make the required substantial preliminary

showing, the defendant “cannot rest on mere conclusory allegations . . . but rather must

present an offer of proof contradicting the affidavit, including materials such as sworn




       1
         The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction under 28 U.S.C. § 1291. “We have not yet identified the standard of review
for a district court’s denial of a request for a Franks hearing, and our sister circuits are
divided on the correct approach.” United States v. Pavulak, 700 F.3d 651, 665-66 (3d
Cir. 2012). We need not resolve this issue here, as the denial of Wade’s request for a
Franks hearing was appropriate even under de novo review. See id. at 666 (adopting this
approach without deciding what standard of review applies). On appeal from the denial
of a motion to suppress, we review the District Court’s factual findings for clear error and
its application of law de novo. United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006).
                                              6
affidavits or otherwise reliable statements from witnesses.” United States v. Yusuf, 461

F.3d 374, 383 n.8 (3d Cir. 2006).

       Here, the District Court correctly denied Wade’s request for a Franks hearing,

following an extensive “pre-Franks” evidentiary hearing. Wade failed to make any

substantial preliminary showing with respect to knowingly or intentionally false

statements in Churilla’s affidavit. Wade relies extensively on his phone records to

support his argument “that a CI never existed and that the controlled buy never

occurred,” Appellant’s Br. 23, but, as the District Court thoroughly explained, these

records are in fact consistent with both the affidavit’s narrative (the CI called Wade once)

and the possibility that the CI called Wade twice, conceivably using two different cell

phones. See App. 36 (District Court summarizing records of five different unaccounted-

for numbers making four answered and five unanswered calls to Wade’s phone during

the relevant period). Wade’s contention that the affidavit omitted information concerning

the CI’s unreliability is similarly unpersuasive: the officers corroborated the CI’s claim

that Wade was a drug dealer by actually witnessing Wade’s sale of drugs to the CI. Cf.

United States v. Stearn, 597 F.3d 540, 555-58 (3d Cir. 2010) (holding affidavit supported

probable cause despite absence of evidence regarding informant’s reliability where police




                                             7
corroborated informant’s tip).2 Thus, we will not disturb the District Court’s order

denying Wade a Franks hearing.

                                              B

       Wade next contends that the District Court should have suppressed his post-arrest

statements, arguing that they were obtained as a result of his unlawful detention during

the search of his home. Evidence obtained as a result of a Fourth Amendment violation

ordinarily must be suppressed as “fruit of the poisonous tree.” Wong Sun v. United

States, 371 U.S. 471, 487-88 (1963). Evidence is not fruit of the poisonous tree and need

not be suppressed, however, “if the connection between the illegal police conduct and the

discovery . . . of the evidence is so attenuated as to dissipate the taint.” United States v.

Perez, 280 F.3d 318, 338 (3d Cir. 2002) (internal quotation marks and citation omitted).

Miranda warnings alone do not necessarily render a confession free of the taint of an

earlier Fourth Amendment violation. Brown v. Illinois, 422 U.S. 590, 603 (1975).

Rather, pursuant to Brown, to determine whether this causal connection is sufficiently

       2
          Wade also relies on United States v. McMurtrey, 704 F.3d 502 (7th Cir. 2013), to
argue that the District Court improperly limited his cross-examination of witnesses at the
“pre-Franks” hearing. McMurtrey is inapposite: there, the Court of Appeals for the
Seventh Circuit held that restrictions on cross-examination during a “pre-Franks” hearing
were impermissible where the defendant had already made a sufficient showing to be
entitled to a full Franks hearing. 704 F.3d at 505. The court expressly stated that “[t]he
[district] court’s restrictions on cross-examination would not have mattered if the
defendant had not made a sufficient showing to obtain a full Franks hearing.” Id. at 510.
Here, because Wade never made the Franks showing, he was not entitled to a hearing at
all, so “any [purported] limits placed upon cross-examination at” the evidentiary hearing
he received “are not problematic.” United States v. Taylor, 154 F.3d 675, 680 (7th Cir.
1998).
                                               8
attenuated, we consider: (1) the temporal proximity between the unlawful conduct and

the recovery of the evidence; (2) “the presence of intervening circumstances”; and (3)

“particularly, the purpose and flagrancy” of the unlawfulness. Id. at 603-04; see also

United States v. Dupree, 617 F.3d 724, 739 (3d Cir. 2010) (Fisher, J., concurring in the

judgment).

       Application of these principles here dictates that the District Court’s denial of

Wade’s suppression motion was correct. Even assuming that his fifteen-minute detention

while his home was being searched violated the Fourth Amendment because it occurred

beyond “the immediate vicinity of the premises in question,” Bailey, 133 S. Ct. at 1042,

Wade’s subsequent post-Miranda statements were obtained independently of this event

and were free of any taint under the Brown factors. First, at least two hours elapsed

between Wade’s brief detention and his eventual statements.3 Second, intervening

circumstances were significant: most notably, officers discovered drugs and a gun in

Wade’s home and told Wade at the police station that they would be “charging [him]

with everything,” Supp. App. 269, suggesting that Wade’s statements were motivated by


       3
         Exactly how much time constitutes “temporal proximity” seems to be affected by
intervening circumstances that occur during the time between the illegality and the
discovery of evidence sought to be suppressed. See, e.g., Taylor v. Alabama, 457 U.S.
687, 691 (1982) (holding that “a difference of a few hours” between the facts in Taylor
and the facts in Brown did not suffice to attenuate the taint where “petitioner was in
police custody [following an unlawful arrest], unrepresented by counsel, and he was
questioned on several occasions, fingerprinted, and subjected to a lineup”). Regardless,
the remainder of the Brown analysis clearly demonstrates that suppression is
unwarranted.
                                              9
his knowledge that officers had discovered his contraband and not fruit of the unlawful

detention. Cf. Rawlings v. Kentucky, 448 U.S. 98, 108 (1980) (“Here, where petitioner’s

admissions were apparently spontaneous reactions to the discovery of his drugs . . . , we

have little doubt that this factor weighs heavily in favor of a finding that petitioner acted

‘of free will unaffected by the initial illegality.’” (quoting Brown, 422 U.S. at 603)).

Third, there is no indication of “flagran[t]” unlawfulness. Brown, 422 U.S. at 604.

Indeed, Wade himself concedes that “the official misconduct was slight, and perhaps

even in good faith,” Appellant’s Br. 47, and their conduct was consistent with then-

existing Supreme Court precedent permitting detentions incident to the execution of

search warrants. Cf. Brown, 422 U.S. at 605 (holding statement was fruit of Fourth

Amendment violation where police “illegality . . . had a quality of purposefulness” as

“[t]he impropriety of the arrest was obvious” and detectives acknowledged “that the

purpose of their action was ‘for investigation’ or for ‘questioning’”). Thus, because the

Brown factors weigh in favor of the Government, we will affirm the District Court’s

denial of Wade’s motion to suppress.

                                              III

       For the foregoing reasons, we will affirm.




                                              10
