                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4680



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


PAYTON N. GREEN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      Andre M. Davis, District Judge.
(1:05-cr-00088-AMD)


Submitted:   December 10, 2007         Decided:     December 28, 2007


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth W. Ravenell, William Joshua Morrow, SCHULMAN, TREEM,
KAMINKOW, GILDEN & RAVENELL, P.A., Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Philip S.
Jackson, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Payton N. Green appeals his conviction and sentence for

conspiracy to possess heroin with the intent to distribute, in

violation of 21 U.S.C. § 846 (2000).             Green argues the district

court erred in denying his motion to suppress by finding the

application    established     probable     cause   and   showed       that   other

investigation procedures had been tried and failed, would be

unlikely to succeed, or would be too dangerous; in basing the

denial of the motion on additional affidavits provided by the

Government; by considering the additional affidavits without first

conducting a Franks1 hearing; and because the affidavits do not

establish that the issuing judge knew Terry Page was willing to

cooperate with the investigation.           For the following reasons, we

affirm.

          When reviewing a district court’s ruling on a motion to

suppress, this court reviews underlying factual findings for clear

error and legal conclusions de novo.           United States v. Wilson, 484

F.3d 267, 280 (4th Cir. 2007).          Before authorizing a wiretap, an

issuing   judge    must   find     probable     cause     and    that    “‘normal

investigative     procedures     have   been   tried    and     have    failed   or

reasonably appear to be unlikely to succeed if tried or to be too

dangerous.’”      United States v. Oriakhi, 57 F.3d 1290, 1298 (4th

Cir. 1995) (quoting 18 U.S.C. § 2518(3)(c)); see also Md. Code


     1
      Franks v. Delaware, 438 U.S. 154 (1978).

                                    - 2 -
Ann., Cts. & Jud. Proc. § 10-408(a) (2006).           A wiretap order should

not be granted “‘where traditional techniques could have led to

successful infiltration of the entire enterprise.’”                    Allen v.

State, 597 A.2d 489, 493 (Md. App. 1991) (quoting United States v.

Simpson, 813 F.2d 1462, 1472-73 (9th Cir. 1987)).

            Green contends the warrant application did not show

probable    cause    to   wiretap   his     phone    line.      However,    the

eighty-nine-page      application   detailed        Green’s   involvement    in

dealing heroin and his use of his phone to conduct his illicit

business. Our review of the application persuades us that it amply

supported the finding of probable cause to issue the wiretap order.

            Green next argues the application did not show that

normal investigative procedures had failed, appeared unlikely to

succeed if tried, or were too dangerous.            Appellate courts review

the determination of necessity with great deference.               See Wilson,

484 F.3d at 280; Cantine v. State, 864 A.2d 226, 232 (Md. App.

2004).   The application in support of the wiretap order was sworn

to by a Baltimore police officer and two agents for the Drug

Enforcement       Administration,   with     nine     years   of    cumulative

experience investigating narcotics activities.                The application

detailed    how     investigators   had     utilized    informants,      search

warrants,     surveillance,    criminal       histories,      dialed     number

recorders, and toll record analysis, and had obtained all the

information likely to be gained by these techniques.


                                    - 3 -
           In addition, further use of search warrants would likely

have alerted Green to the investigation.              The affiants explained

why use of undercover agents, cloned pagers, the global positioning

system, pole cameras, and trash searches were unlikely to uncover

useful information.        The affiants further noted they chose not to

impanel a grand jury because they doubted Green would testify

truthfully or willingly incriminate himself.                 The investigators

exhaustively detailed specific factual information demonstrating

the   difficulties    of    continuing     to    gather   evidence    without    a

wiretap.    We accordingly find no basis to reject the district

court’s conclusion that the application sufficiently demonstrated

the need for the wiretap.

           Green     next    contends      the   district     court    erred    by

considering additional affidavits presented by the Government in

denying the motion to suppress.             At the hearing on the motion,

Green   alleged    that     the   second   informant      referred    to   in   the

application for the wiretap was Terry Page, a member of Green’s

organization.      He accordingly argued that the affiants lied when

they stated they had not found anyone from Green’s organization

willing to cooperate.         The Government responded with affidavits

describing that at the time of the application, the affiants

informed the issuing state court judge that the second informant

was Terry Page, but they had worded the application indicating

otherwise in order to protect Page’s identity.              The district court


                                     - 4 -
reviewed the affidavits and found that the issuing judge was not

materially misled as to the circumstances surrounding the warrant

application.

             An application for authorization for a wiretap “shall be

made in writing upon oath or affirmation” and shall provide “[a]

full and complete statement of the facts and circumstances relied

upon   by   the    applicant.”      Md.   Code    Ann.,       Cts.    &    Jud.   Proc.

§ 10-408(a).       In reviewing the probable cause finding, courts are

ordinarily restricted to “the information provided in the warrant

and its accompanying application documents.” Greenstreet v. State,

898 A.2d 961, 971 (Md. 2006).           An exception to this general rule

pertains when the defendant has shown that the affiants seeking the

warrant provided deliberately false material evidence or held a

reckless disregard for the truth, thus meriting a Franks hearing.

Greenstreet, 898 A.2d at 971.

             The district court specifically stated it considered the

Government’s affidavits solely in order to determine whether the

investigators misrepresented the truth to the issuing judge, and

not    in    determining      whether     the     application             sufficiently

demonstrated probable cause. Therefore, the district court did not

err    in   considering     the   affidavits     in       denying    the    motion   to

suppress.

             Green also argues the district court erred by ruling on

the    motion     without   first   conducting        a    Franks    hearing,      thus


                                     - 5 -
depriving Green of the opportunity to contest the additional facts

presented in the affidavits.               However, Green never requested a

Franks    hearing     or    attempted     to   introduce      additional   evidence

regarding the affidavits. “Absent plain or fundamental error, we

need not consider on appeal legal points which were available to

the     appellant     but    not    presented      for    the   district    court’s

consideration.”       United States v. Seidlitz, 589 F.2d 152, 160 (4th

Cir. 1978).     Green has not alleged plain or fundamental error, nor

does the record reflect that such error occurred.

            Finally,        Green    argues      the     Government’s   additional

affidavits failed to establish the necessity of a wiretap order

because they did not establish that the issuing judge knew that

Terry    Page   was   willing       to   cooperate     with   investigators.    We

conclude that this claim does not entitle Green to relief as we

discern no persuasive basis to conclude that Page would or could

have provided further cooperation.               Indeed, the affidavit of the

state’s attorney demonstrates that although Page provided useful

information, he could not provide additional evidence or infiltrate

Green’s organization as he had been incarcerated for two months,

unable to make bail, when the wiretap application was prepared, and

he did not have legal counsel to assist in the negotiation of a

cooperation agreement.

            For these reasons, the district court did not err in

denying Green’s motion to suppress.                Accordingly, we affirm the


                                         - 6 -
conviction and sentence.2     We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                                    AFFIRMED




     2
      We also grant the unopposed motion to withdraw as counsel for
Green filed by the law firm formerly known as Schulman, Treem,
Kaminkow, Gilden & Ravenell, P.A., and retaining as Green’s counsel
Kenneth W. Ravenell.

                                   - 7 -
