                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0478n.06
                            Filed: August 8, 2008

                                       No. 07-3443

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     On appeal from the United States
                                                       District Court for the Northern
TYRONE J. WAGNER,                                      District of Ohio

       Defendant-Appellant.
                                            /

BEFORE:       BOGGS, Chief Judge, RYAN and COLE, Circuit Judges.

       RYAN, Circuit Judge.        The defendant, Tyrone J. Wagner, challenges his

convictions for being a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1), and for unlawfully possessing an unregistered firearm, in violation of 26 U.S.C.

§§ 5861(d), 5871. Specifically, he argues that his convictions must be vacated because

the district court erroneously denied his request for an evidentiary hearing and his motion

to suppress the evidence against him.           We find no basis for disturbing Wagner’s

conviction, and therefore affirm the district court’s judgment.

                                                I.

       During the week of September 3, 2006, The Bureau of Alcohol, Tobacco, and

Firearms (ATF) agents, with the help of a confidential informant (CI), arranged for a

controlled buy of crack cocaine from Wagner. The CI told ATF agents that he had

witnessed Wagner trafficking drugs in the past and had seen Wagner in possession of
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firearms. The CI identified Wagner’s photo and provided agents with Wagner’s address

and vehicle information. ATF agents independently corroborated the CI’s information by

contacting Wagner’s parole officer and a postal inspector, and obtained information on

Wagner’s previous firearm conviction.

       Sometime around September 6, 2006, the CI, wearing an electronic monitoring

device, met Wagner in the parking lot of Wagner’s apartment complex. The CI handed

cash to Wagner, who stated that he had to go up to his apartment and would return shortly.

Upon returning to the parking lot, Wagner handed the CI a quantity of crack cocaine.

       On September 8, 2006, ATF agents applied for a warrant to search Wagner’s

apartment for drug trafficking items. In the affidavit accompanying the request, an ATF

agent detailed the foregoing information regarding the CI, the controlled buy, and the

agent’s independent investigation. On September 13, 2006, officers executed the issued

search warrant. As the officers were approaching Wagner’s apartment building, they

encountered Wagner in the parking lot, stopped him, and ordered him back into the

apartment. Officers handcuffed Wagner and detained him for the duration of the search,

which turned up a .38-caliber revolver, ammunition, a 16-gauge sawed-off shotgun, and

miscellaneous drugs and drug trafficking paraphernalia.

       In October 2006, an indictment issued against Wagner, charging him with two

firearms violations. Wagner filed a motion to suppress the evidence, and requested an

evidentiary hearing. The district court denied both the request for an evidentiary hearing

and the motion to suppress. Wagner then entered into a conditional plea agreement,

offering to plead guilty to the charges in the indictment, and reserving the right to appeal
(No. 07-3443)                               -3-

the denial of his motion to suppress. The district court accepted Wagner’s guilty plea and

sentenced him to 188 months’ imprisonment, followed by three years’ supervised release.

                                             II.

       Wagner first argues that the district court abused its discretion when it denied him

an evidentiary hearing regarding the constitutionality of his detention during the execution

of the search warrant. Specifically, Wagner contends that officers arrested him in the

parking lot of his apartment complex without probable cause, in violation of the Fourth

Amendment.

       We review a district court’s decision to deny an evidentiary hearing for abuse of

discretion. Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir. 2005), cert. denied, 127 S.

Ct. 380 (2006). We review factual findings for clear error and the legal conclusion of

whether a seizure occurred in violation of the Fourth Amendment de novo. United States

v. Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995).

       Wagner maintains that he presented a sufficient factual basis to warrant an

evidentiary hearing regarding the constitutionality of his detention. Wagner bears the

burden of demonstrating that there are contested issues of fact that might be resolved at

an evidentiary hearing. United States v. Abboud, 438 F.3d 554, 577 (6th Cir.), cert. denied,

127 S. Ct. 446 (2006). The only issue Wagner disputes is that he was “arrested” and not

“detained,” which is not a question of fact, but a question of law. Because Wagner failed

to present any factual disputes, we think the district court did not abuse its discretion in

denying Wagner’s motion for an evidentiary hearing.

       When officers execute a search warrant at a suspect’s home, they enjoy an implicit,

limited authority to detain the occupants at the premises—even with handcuffs—without
(No. 07-3443)                                 -4-

making an arrest. Muehler v. Mena, 544 U.S. 93, 98-99 (2005). An officer’s right to detain

a suspect who is in the process of leaving his home when the officer arrives to execute a

valid search warrant is not limited by the suspect’s geographic proximity to his house;

rather, police may detain a suspect as soon as is practicable under the circumstances.

United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991).

       Here, the officers preparing to execute the search warrant encountered Wagner in

the parking lot of his apartment complex. Before executing the search, the officers used

reasonable force to effectuate Wagner’s detention: They handcuffed him and escorted

him back into his apartment, where he was detained for the duration of the search. We

agree with the district court that the actions of the officers constituted a detention, not an

arrest, and we see no violation of the Fourth Amendment arising out of these events.

                                              III.

       Wagner argues that the district court erred by denying his request for a hearing

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

       A defendant is entitled to a Franks hearing on the veracity of a search warrant

affidavit if he makes a “substantial preliminary showing that specified portions of the

affiant’s averments are deliberately or recklessly false and . . . [that] 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. Campbell, 878 F.2d 170, 171 (6th Cir.

1989) (emphasis in original).

       When reviewing a district court’s denial of a Franks hearing, we apply “the same

standard as for the denial of a motion to suppress: the district court’s factual findings are
(No. 07-3443)                                  -5-

reviewed for clear error and its conclusions of law are reviewed de novo.” United States

v. Graham, 275 F.3d 490, 505 (6th Cir. 2001).

       Warrant affidavits carry a “presumption of validity” and the challenger’s attack must

focus on statements made by the affiant, and not statements the affiant states were made

by a nongovernmental informant. Franks, 438 U.S. at 171. Wagner does not allege that

the affiant made any false statements in the affidavit. Instead, he devotes his argument

to the credibility of the CI, and the ATF agent’s failure to identify the CI in the affidavit.

Because he fails to show that specific portions of the affiant’s averments are deliberately

or recklessly false, we think the district court correctly concluded that Wagner was not

entitled to a Franks hearing.

                                               IV.

       Finally, Wagner argues that the district court erred by denying his motion to

suppress the evidence seized pursuant to the search warrant because, he argues, the

affidavit presented to the magistrate judge did not demonstrate the requisite probable

cause to support issuance of the warrant.

       When reviewing a district court’s denial of a motion to suppress, we review findings

of fact for clear error and conclusions of law de novo, United States v. Foster, 376 F.3d

577, 583 (6th Cir. 2004), viewing the evidence in the light most favorable to the

government. United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006).

       A magistrate judge reviewing an application for a search warrant must consider the

totality of the circumstances and “make a practical, common-sense decision whether, 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
(No. 07-3443)                              -6-

U.S. 213, 238 (1983). Probable cause may derive from information provided by a CI, so

long as the information is “sufficiently detailed and corroborated by the independent

investigation of law enforcement officers.” United States v. Lumpkin, 159 F.3d 983, 986

(6th Cir. 1998).

         Based on the totality of the circumstances, we think the magistrate judge had a

substantial basis to conclude that there was a fair probability that contraband would be

found in Wagner’s apartment. The affidavit in support of the search warrant contained

adequate detail regarding the controlled buy and substantially corroborated information

provided by the CI, which was enough to support the magistrate judge’s finding of probable

cause.

                                           IV.

         The district court’s judgment is AFFIRMED.
