                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0390n.06
                               Filed: May 12, 2005

                                         No. 03-5258

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


United States of America,                      )
                                               )
       Plaintiff-Appellant,                    )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
Julian Neal Riddick,                           )   WESTERN DISTRICT OF TENNESSEE
                                               )
       Defendant-Appellee.                     )




       Before: GUY and ROGERS, Circuit Judges, and DOWD, District Judge*.


       Dowd, District Judge. This is an appeal by the government, filed pursuant to the

provisions of 18 U.S.C. § 3231 from the granting of defendant Julian Neal Riddick’s motion to

suppress evidence obtained as a result of the May 1999 execution of search warrants issued by

Chief Judge James Todd. The warrants authorized the search of Riddick’s home, truck, and

office at Planters Bank in Maury City, Tennessee, where he served as Vice President. Following

the May 1999 searches, the defendant, along with two other defendants, Robert Thomas and

Danny Lovelace, was eventually indicted on February 26, 2001 and charged with four counts of




              *
                The Honorable David D. Dowd, Jr., United States District Judge for the Northern
       District of Ohio, sitting by designation.
mail fraud and one count of conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341

and 371.


       On November 13, 2001, after receiving discovery materials, Riddick filed a motion to

suppress.1 Magistrate Judge J. Daniel Breen conducted the evidentiary hearing on January 29,

2002 and, on June 28, 2002, recommended denial of the motion to suppress as to the search of

Riddick’s home and office and a granting of the motion as to the search of Riddick’s truck.

After Riddick filed an objection to the Recommendation, Judge Bernice B. Donald conducted an

additional evidentiary hearing on November 15, 2002. Then on January 21, 2003, Judge Donald

ordered the suppression of all evidence seized in the searches of defendant’s home and office.

The government filed a timely notice of appeal on February 13, 2003. Briefing was suspended

until March 22, 2004 when Judge Donald issued the promised memorandum opinion supporting

the suppression order. We reverse the order of suppression and remand for further proceedings.

Our analysis follows.


       I.      The Affidavit for the Search Warrant


       A 13-page affidavit was sworn to by FBI Special Agent Christopher Gicking in support

of the issuance of two search warrants. His affidavit described four separate instances of



               1
                The indictment of Riddick, Thomas, and Lovelace was assigned to Chief Judge Todd.
       On December 20, 2001, Chief Judge Todd referred the pending motion to suppress to Magistrate
       Judge Breen and referred a ruling on any objections to Magistrate Judge Breen’s Report and
       Recommendation to United States District Court Judge Bernice Donald. Judge Todd’s order
       also indicated that after the motion to suppress was resolved, he would conduct all further
       proceedings.


                                                2
apparent criminal conduct on the part of Riddick, a bank official of Planter’s Bank. Paragraphs 3

through 17 pertained to claims that Riddick was involved with a Danny Cobb to obtain a

$300,000 FHA-Guaranteed Loan and to use the proceeds to pay off an allegedly improperly

handled loan of $200,000 issued by Planters Bank on the authority of Riddick.


       The second scheme alleged that Riddick accepted cash payments on bank loans to Pete

Turnage that had been taken off the books of Planters Bank as uncollectible and as described in

paragraph 19.


       The third scheme detailed Riddick’s alleged participation with a Wiley Hutcherson, Jr. in

extensive check kiting at the Planters Bank and which included fraudulent loans from other

banks for $200,000 and $250,000 and as described in paragraphs 20 through 32.


       The final paragraphs, 33 through 38, dealt with the subject matter of the conspiracy count

in the indictment and are included for emphasis:


                (33) Hutcherson stated [that] he had been told by someone that RIDDICK had
                approached an individual unknown to him (Hutcherson) about burning a house in
                order to collect the insurance proceeds. Hutcherson stated RIDDICK had asked
                him once in the past if he knew of anyone who would burn a house. Hutcherson
                could not provide any more specific details.


                (34) On 3/11/1999, a confidential informant (CI), whose identity has been
                disclosed to the district court, [i.e., Danny Lovelace,]2 advised [Tennessee Bureau
                of Investigation Special Agent] Michael Frizzell that RIDDICK was involved with
                a house fire that occurred on 08/26/1998 at 561 Dogwood Drive in Decaturville,
                Tennessee. The CI stated RIDDICK had prior knowledge that the residence was
                going to burn. The CI advised RIDDICK, Danny Lovelace and Robert Harlan


                2
                 Material in brackets has been added.

                                                        3
Thomas had planned to burn the residence in order to collect the insurance
proceeds and pay off a mortgage. The CI stated the mortgage was held by
RIDDICK at Planters Bank. The CI advised Delmer Lovelace had secured the
loan from RIDDICK at Planters Bank but had transferred the Deed of Trust to his
brother, Danny Lovelace. The CI advised the deed was transferred upon the
advice Danny Lovelace received from RIDDICK. The CI stated once the deed
transfer had taken place, Delmer Lovelace faxed the information along with
insurance papers to RIDDICK at the Planters Bank from telephone number 901-
852-4189 and that this took place sometime in April 1998. [Agent] Frizzell
confirmed that a call to Planters Bank in Maury City was placed from telephone
number 901-852-4189 on 4/21/1998 at 8:33 am. [Agent] Frizzell also confirmed
that no other calls were placed to Planters Bank from that telephone number
during April 1998. CI advised RIDDICK and Thomas gave Lovelace $10,000
cash to purchase furniture to place in the residence in Decaturville before it was
burned. CI advised RIDDICK and Thomas obtained $10,000 through a loan from
another bank. He/she did not know the name of the bank but believed it was
located in Dyersburg, Tennessee. CI advised subsequent to the arson he observed
the insurance papers regarding the house at 561 Dogwood Drive in Decaturville at
Thomas’s office in Alamo. On 05/11/1999 CI confirmed these insurance papers
are still at Thomas’s office.


(35) Investigator Johnny Hayes of the Tennessee State Bomb and Arson Section
advised [Agent] Frizzell an investigation was initiated on 08/28/1998 regarding a
residential fire at 561 Dogwood Drive. Hayes advised the investigation was to
determine the cause and origin of the fire and it was determined the fire was an
incendiary fire. Hayes advised that he had the reports of Walt Kunkel, who was
representing Allstate insurance company in regards to this fire. Hayes advised
Kunkel traveled to Maury City, Tennessee on 12/01/1998 to meet with RIDDICK
at Planters Bank. Hayes advised Kunkel attempted to question RIDDICK about
the loan documents of Delmer Lovelace and Danny Lovelace in regards to the
property located at 561 Dogwood Drive but RIDDICK stated Planters Bank only
held the Deed of Trust & Promissory Note reflecting that Delmer Lovelace
borrowed $99,955.50 from Planters Bank. Hayes advised Kunkel reported that
RIDDICK refused to answer any questions and failed to produce any documents.


(36) Hayes advised [Agent] Frizzell that he and Investigator Randy Lipford
traveled to Maury City, Tennessee, on 4/22/99 to meet with RIDDICK at Planters
Bank. Hayes advised he and Lipford attempted to speak with RIDDICK in
regards to loan documents Planters Bank held in regards to Delmer Lovelace and
the property located at 561 Dogwood Drive. Hayes advised RIDDICK referred
Hayes and Lipford to his attorney. Hayes advised before he and Lipford left the


                                        4
              bank he (Hayes) observed a folder with Delmer Lovelace’s name on it in the
              filing cabinet in RIDDICK’s office.


              (37) Investigators have confirmed RIDDICK’s participation and knowledge in
              the nominee loans to Hutcherson and his participation and knowledge in the
              arson at the house at 561 Dogwood Drive in Decaturville, Tennessee through
              electronic surveillance.


              (38) On 08/19/1997 [Tennessee Bureau of Investigation Special Agent] Jolley
              was in RIDDICK’s residence at Route 1, Pete Tinsley Road, Alamo, Tennessee
              and observed numerous papers, documents and boxes scattered inside the house.
              The experience of the investigators in this case has been that personal records are
              normally kept in an individual’s residence.


(Emphasis added.)


       II.    The Initial Order of the District Court


       Judge Donald’s initial order rejecting in part the Report and Recommendation stated succinctly

as follows:


              This matter is before the Court on Defendant Julian Neal Riddick’s Objections to
              the Magistrate Judge’s Report and Recommendation (“Report”) which
              recommended granting in part and denying in part Defendant’s Motion to
              suppress. Defendant contends that this Court should reject the magistrate judge’s
              report insofar as it recommends denying suppression. Defendant contends that
              the affidavit in support of the search warrant was insufficient to establish probable
              cause absent the false statement and therefore violated the Franks doctrine. See
              Franks v. Delaware, 438 U.S. 154 (1978). Plaintiff has filed a response to
              Defendant’s objections.


              After an evidentiary hearing, and upon consideration of the entire record de novo,
              for the reasons set forth in the separate memorandum to be filed, the [sic] finds
              that the affidavit in support of the search warrant contained false statements and
              material omissions made with reckless disregard for the truth. The false and
              misleading statements, and the failure to apprize Judge Todd of the informant’s

                                                        5
               true background and character, denied Judge Todd the opportunity to evaluate
               the trustworthiness of the information which provided the probable cause for the
               issuance of the search warrant. Once the false and misleading statements are
               excluded, no probable cause exists to support the issuance of the search warrant.


               Accordingly, Defendant’s objections to the Report and Recommendation are
               sustained, and Defendant’s motion to suppress is granted.


(Emphasis added.)


       III.  A Summary of the District Court’s Separate Memorandum in Support of
       Suppression


       Judge Donald focused on three areas in the separate memorandum opinion. First the opinion

found that the person described in paragraph 34 as the CI was, as admitted by the government, Danny

Lovelace and that the government failed to provide information to Chief Judge Todd that it had

pertaining to Lovelace’s lack of credibility or veracity based on prior felony convictions, his state of

depression, his possession of firearms even though he was a convicted felon, his threats to other

individuals, his addiction to Klonopin, and his recent arrests. Secondly, the opinion held that the

government had misrepresented, with reckless disregard for the truth that it had corroborated Lovelace’s

allegations in two instances. The first misrepresentation dealt with the sentences within paragraph 34

which declared:


               The CI stated once the deed transfer had taken place, Delmar Lovelace faxed the
               information along with insurance papers to RIDDICK at the Planters Bank from
               telephone number 901-852 4189 and this took place sometime in April 1998.
               SA Frizzell confirmed that a call to Planters Bank in Maury City, was placed from
               telephone number 901-852-4189 on 04/21/1998 at 8:33am. SA Frizzell also
               confirmed that no other calls were placed to Planters Bank from that telephone
               number during April 1998.


                                                 6
       It was subsequently developed that the number was the main phone number to Planters Bank and

not a fax and thus, as Judge Donald held, the affidavit conveyed a false statement that a fax transmission

from Lovelace to the Defendant was “confirmed” by the government.


       The second misrepresentation as found by Judge Donald related to paragraph 37 which declared

that “investigators have confirmed RIDDICK’s participation and knowledge in the nominee loans to

Hutcherson and his participation and knowledge in the arson at the house at 561 Dogwood Drive in

Decaturville, Tennessee through electronic surveillance.”     The content of the surveillance tapes was

disclosed in the evidentiary hearings. After considering the tapes, Judge Donald, after again

questioning the reliability of Danny Lovelace, stated that “[e]ven if the Court assumes that Defendant’s

repeated warnings demonstrated that he knew about Lovelace’s involvement in the arson after it

occurred, these warnings do not show Defendant’s ex ante knowledge of or participation in the arson.”

Judge Donald eventually concluded that “paragraph 37 contains a false or materially misleading

statement in violation of Franks and requires a rereading of the affidavit, with paragraph thirty-seven

removed, to assess whether a substantial basis remains for finding probable cause for the two search

warrants” and then after examining paragraphs 13, 33, 35, and 36 concluded that no probable cause

remained to support the issuance of the search warrants.


       IV.     A Summary of the Government's Position on Appeal


       The government argued in its brief and at oral argument that the statements by the CI, i.e.,

Danny Lovelace were made in the context of his admissions against his penal interest and thus were

entitled to be considered on the issue of probable cause, contrary to the position of the district court.

Secondly, the government took the position that the surveillance tapes clearly support the proposition

                                                      7
that Riddick was involved in bank fraud schemes while conceding that the use of the word “confirmed”

in paragraph 37 as to Riddick’s “participation . . . in the arson . . . through electronic surveillance”

overstated the substance of the tapes, but that the tapes demonstrate Riddick's involvement in a bank

fraud scheme.


       V.       A Summary of the Applicable Law


       The Supreme Court has decided a number of cases where the defendant contended that the

search conducted pursuant to the issuance of a search warrant was constitutionally flawed because the

information advanced in support of the search warrant by the affiant was insufficient, as a matter of law,

to establish the requisite probable cause necessary to justify the issuance of the search warrant by the

independent judicial officer, normally identified as the magistrate.


       We pause to review some of the major pronouncements regarding search warrants under attack

in the context of the standard of review involving suppression orders. These cases hold that the fact

calls of trial judges are reviewed for clear error while law calls are reviewed on a de novo standard.


       Jones v United States, 362 U.S. 257, 270-71 (1960), announced that reviewing courts, in

weighing the decision of the judicial officer to issue a search warrant, should accord the finding of the

judicial officer to authorize the issuance of the search warrant considerable deference. See also United

States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc) (holding that the issuing judge's findings of

probable cause are required to be given “great deference”). The subsequent case of United States v.

Ventresca, 380 U.S. 102, 108 (1965), teaches that judicial officers in determining whether to issue a

search warrant are not required to confine their evaluations within legalistic boundaries but instead may


                                                      8
use their common sense. Spinelli v. United States, 393 U.S. 410, 419 (1969), opined that the requisite

probable cause requires only a finding of probability of criminal activity, not a prima facie showing

thereof.


        The decisions in Aguilar v. Texas, 378 U.S. 108 (l964), and Spinelli focused on the necessity to

support information based on an informant's revelation by some additional investigation. Aguilar and

Spinelli placed additional burdens on the affiant and numerous decisions grew out of the Aguilar and

Spinelli decisions.


        In the wake of the restricting decisions of Aguilar and Spinelli came the decision in United

States v. Harris, 403 U. S. 573 (1971), which held that statements of an informant, which constituted

admissions against his penal interest, supported issuance of the search warrant. Chief Justice Burger, in

writing for the Court, observed:


                        Common sense in the important daily affairs of life would induce a
                prudent and disinterested observer to credit these statements. People do not
                lightly admit a crime and place critical evidence in the hands of the police in the
                form of their own admissions. Admissions of crime, like admissions against
                proprietary interests, carry their own indicia of credibility—sufficient at least to
                support a finding of probable cause to search.


Id. at 583 (plurality opinion).3


        The next major relevant decision in the Supreme Court’s Fourth Amendment jurisprudence was

Franks v. Delaware, 438 U.S. 154 (1978). Franks allows, under very strict standards, an inquiry into the


                3
                 Although this language is contained in a plurality opinion to which Justice Stewart did
        not join, Justice Stewart did join a part of the opinion stating that the “accusation by the
        informant was plainly a declaration against interest.” Id. at 580.

                                                      9
issue of whether the affiant for the search warrant made knowingly and intentionally, or with reckless

disregard for the truth, false statements in the affidavit. In the event of such a finding, it becomes

necessary to determine if probable cause remains after the deletion of the false statement. However, in

finding that such an inquiry could be made by way of an evidentiary hearing, Justice Blackmun, writing

for the majority, declared:


                       In sum, and to repeat with some embellishment what we stated at the
               beginning of this opinion: There is, of course, a presumption of validity with
               respect to the affidavit supporting the search warrant. To mandate an evidentiary
               hearing, the challenger's attack must be more than conclusory and must be
               supported by more than a mere desire to cross-examine. There must be allegations
               of deliberate falsehood or of reckless disregard for the truth, and those allegations
               must be accompanied by an offer of proof. They should point out specifically the
               portion of the warrant affidavit that is claimed to be false; and they should be
               accompanied by a statement of supporting reasons. Affidavits or sworn or
               otherwise reliable statements of witnesses should be furnished, or their absence
               satisfactorily explained. Allegations of negligence or innocent mistake are
               insufficient. The deliberate falsity or reckless disregard whose impeachment is
               permitted today is only that of the affiant, not of any nongovernmental informant.
               Finally, if these requirements are met, and if, when material that is the subject of
               the alleged falsity or reckless disregard is set to one side, there remains sufficient
               content in the warrant affidavit to support a finding of probable cause, no hearing
               is required. On the other hand, if the remaining content is insufficient, the
               defendant is entitled, under the Fourth and Fourteenth Amendments, to his
               hearing. Whether he will prevail at that hearing is, of course, another issue.


Id. at 171-72 (emphasis added).


       Franks v. Delaware was followed by Illinois v. Gates, 462 U.S. 213 (1983), and the totality of

the circumstance’s test was announced as the Court stated:


               [W]e reaffirm the totality-of-the-circumstances analysis that traditionally has
               informed probable-cause determinations. . . . The task of the issuing magistrate is
               simply to make a practical, commonsense decision whether, given all the
               circumstances set forth in the affidavit before him, including the “veracity” and

                                                         10
               “basis of knowledge” of persons supplying hearsay information, there is a fair
               probability that contraband or evidence of a crime will be found in a particular
               place. And the duty of a reviewing court is simply to ensure that the magistrate
               had a “substantial basis for . . . conclud[ing]” that probable cause existed.


Id. at 238-39 (internal citations omitted).


       VI.     The Absence of Compliance with the Requirements of Franks v. Delaware by the
               Defendant's Counsel


       The Motion to Suppress was filed in November 2000 after it was obvious to Riddick’s counsel

by his examination of the surveillance tapes referred to in paragraph 37 of the affidavit that the

confidential informant identified to Chief Judge Todd was in fact the co-defendant Danny Lovelace.


       Riddick did not request a Franks hearing in his motion to suppress, and no other defense effort

was made to comply with the requirements contained in Justice Blackmun’s opinion.4 As a


               4
                The critical part of the Motion to Suppress follows:

                (a) The affidavit providing the basis of “probable cause” for the search warrant was and is
       defective in that there is absolutely no corroboration of the confidential informant’s reliability or veracity
       to establish probable cause. There is nothing in the affidavit to provide the “basis of knowledge” of the
       confidential informant, no indication that the confidential informant had previously provided reliable
       information to law enforcement, nor is there any factual basis upon which to base a belief in the
       confidential informant’s veracity.
                (b) In the absence of any evidence of reliability, veracity, or basis for the knowledge of the
       confidential informant appearing in the affidavit, there must be facts set forth in the affidavit,
       independently known by the affiant or some investigative officer or agent of the government upon which
       the affidavit relies to corroborate the information provided by the confidential informant. In this case, the
       only alleged confirmation or corroboration of the confidential informant occurs in the following statement
       found at page 11:

               The CI stated that once the deed transfer had taken place, Delmar Lovelace faxed the
               information along with insurance papers to Riddick at the Planters Bank from telephone
               number 901-852-4159 and that this took place sometime in April 1998.

               S.A. Frizzell confirmed that a call to Planters Bank in Maury City, was placed from
                                                                                                      (continued...)

                                                        11
practical matter, the dissent of Justice Rehnquist in Franks accurately predicted the possible misuse of

Franks when he stated:


                       The Court’s opinion in this case carefully identifies the factors which
               militate against the result which it reaches, . . . and I am thoroughly persuaded
               that the barriers which the Court believes that it is erecting against misuse of the
               impeachment process are frail indeed.



                        4
                         (...continued)
               telephone number 901-852-4189 on 04/21/1998 at 8:33 a.m. S.A. Frizzell also confirmed
               that no other calls were placed to Planters Bank from that telephone number during April,
               1998.

                (c) The obvious representation of the affiant is that the call placed from the telephone number of
       Delmar Lovelace (901-852-4189) on April 21, 1998 confirmed that the facsimile had been sent to Planters
       Bank from that telephone number in April of 1998. This statement was and is false and misleading. In
       fact, the evidence known to the investigator was that the telephone number called on April 21, 1998 at
       Planters Bank from (901) 852-4189 was not the facsimile number of the bank. (See attached telephone
       record produced by the government through SA Frizzell). The bank’s facsimile number was and has been
       for more than nine years 656-2212. Indeed, since 656-2212 was the actual facsimile number of Planters
       Bank and only one call was made to Planters Bank during April 1998 from the above number, this one
       call refutes rather than corroborates the information provided by the alleged confidential informant.
                (d) The only other corroboration or confirmation of the confidential informant’s information is
       provided in paragraph 37 of the affidavit which provides, in pertinent part:

               (37) Investigators have confirmed Riddick’s . . . . [sic] participation and knowledge in the
               arson at the house on 561 Dogwood Drive in Decaturville, Tennessee, through electronic
               surveillance.

                (e) Pursuant to Rule 16 discovery, the United States has provided audio tape recordings of what
       purport to be the “electronic surveillance” made by the government in this case. It is respectfully
       submitted that nothing contained in the electronic surveillance corroborates the confidential informant’s
       statement nor indicates Neal Riddick’s knowledge of or participation in the arson prior to its occurring.
       Indeed, the electronic surveillance (audio tape recordings) negate such information.
                (f) Since the alleged corroboration of the information provided by the confidential informant
       provided in the affidavit used to establish “probable cause” for issuance of the search warrant is either
       false or misleading, the above statements in the affidavit are, therefore, false, and/or, at least, recklessly
       made. These false, misleading, and recklessly made statements were material evidence and necessary to
       convince the Magistrate under Rule 41 that there was probable cause to issue the search warrant related
       to the charges here because such statements were used to corroborate the confidential informant’s
       information.

       (Emphasis added.)

                                                             12
                       ...


                       The Court has commendably, in my opinion, surrounded the right to
               impeach the affidavit relied upon to support the issuance of a warrant with
               numerous limitations. My fear, and I do not think it an unjustified one, is that
               these limitations will quickly be subverted in actual practice. . . . I greatly fear
               that this generalized language will afford insufficient protection against the
               natural tendency of ingenious lawyers charged with representing their client's
               cause to ceaselessly undermine the limitations which the Court has placed on
               impeachment of the affidavit offered in support of a search warrant. I am sure that
               the Court is sincere in its expressed hope that the doctrine which it adopts will not
               lead to ‘any new large-scale commitment of judicial resources, but. . . .


438 U.S. at 180-81, 187.


       The primary focus of the Motion to Suppress was a challenge to the credibility of the

confidential informant, i.e., the co-defendant Danny Lovelace, and lacked any substantial compliance

with the requirements imposed by Franks for a hearing. However, as both Magistrate Judge Breen and

Judge Donald proceeded with the Franks v. Delaware inquiry, we shall address the rulings in our

analysis.


       VII. The District Court's Decision to reject the statements of the CI, i.e., Lovelace


       The failure to advise the magistrate, i.e., Chief Judge Todd, of the background of Lovelace does

not justify the district court’s rejection of the information supplied by Lovelace, as supplying the

information was clearly against his penal interest. See Harris, 403 U.S. at 583-584.5


               5
                Chief Judge Todd swore agent Gicking to the truthfulness of the information in the
       thirteen page affidavit and in paragraph 34 of the affidavit Gicking swore that the identity of the
       informant had been disclosed to the court. A common sense reading of that statement
       concerning disclosure to the court would make a reference to Chief Judge Todd who swore the
                                                                                             (continued...)

                                                    13
       Riddick and the district court focused on the failure of Agent Gicking to advise Chief Judge

Todd of the past criminal conduct of Lovelace, his propensity for drinking, and his depression. Riddick

contends that the teachings of United States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000), require that

law enforcement officials must “present evidence from which the [issuing] judge can conclude from the

totality of the circumstances, ‘including the veracity and basis of knowledge of persons supplying

hearsay information, [that] there is a fair probability that contraband or evidence of a crime will be

found in a particular place.”


       The Supreme Court in Gates set out the basis for Williams’ general statement as to “veracity and

basis of knowledge,” but the teachings of Harris inform that basic principle. Williams, in particular,

related to hearsay statements by persons unknown to the law enforcement officials or mere informants

who themselves make no self incriminating statements. Cases that rely on Harris are too numerous to


       5
        (...continued)
       affiant. It is also a common sense interpretation of the proceeding and with deference to the
       magistrate, i.e., Chief Judge Todd, that he was informed by affiant that Danny Lovelace was the
       person identified as the confidential informant. As a consequence when Chief Judge Todd read
       in particular the provisions in paragraph 34 he knew that the confidential informant, i.e., Danny
       Lovelace, was providing information against his penal interest in the context of the teachings of
       Harris.
                Agent Gicking was first questioned about the disclosure of Danny Lovelace as the CI to
       Chief Judge Todd on January 29, 2002 in the evidentiary hearing before Magistrate Judge Breen.
       Gicking indicated a belief that the identity of Danny Lovelace was revealed to Chief Judge Todd.
       (See JA 324.) Gicking was again questioned on November 15, 2002 in the hearing before Judge
       Donald and again advised that Chief Judge Todd was told that the CI was Danny Lovelace. (See
       JA 482.) Michael Frizzell, a special agent for the Tennessee Bureau of Investigation also
       testified in both evidentiary hearings. He testified that he was present with Agent Gicking and
       AUSA Grinald when the affidavit of Gicking was presented to Chief Judge Todd and that he
       identified Danny Lovelace as the CI, but not under oath and that Chief Judge Todd inquired if
       Danny Lovelace was a mechanic. (See JA 369.) Agent Frizzell repeated similar testimony
       before Judge Donald in the second evidentiary hearing. (See JA 512-513.) In a further attempt to
       discredit Danny Lovelace, and after he had been indicted as a co-defendant, Riddick called
       Danny Lovelace as a witness in the evidentiary hearing before Judge Donald. (See JA 527-535.)

                                                    14
cite but see as examples: United States v. Czuprynski, 46 F.3d 560, 564 (6th Cir. 1995) (affiant’s

statement against penal interest that she smoked marijuana with the defendant “bears intrinsic evidence

of credibility” and supports search warrant); United States v. Chafin, 622 F.2d 927, 930 (6th Cir. 1980)

(informant’s statements contained sufficient indicia of truthfulness to support search warrant even

though informant did not admit to all of the elements of the crime because his statements were “a

dangerous admission, one that he would not lightly make, and in doing so he was placing critical

evidence in the hands of the prosecutors”); United States v. Rosenbarger, 536 F.2d 715, 719 (6th Cir.

1976) (probable cause for the issuance of a search warrant where affidavit contained information from

informant implicating herself in criminal activity); United States v. Soriano, 361 F.3d 494, (9th Cir.

2003) (informant’s statements deemed reliable because they amounted to admissions of criminal

activity, and, therefore, sufficient grounds to issue search warrant existed).


       We note that a warrantless arrest and the ensuing search of a person based on the self-

incriminating statement of a co-defendant passes constitutional muster and subsequent motions to

suppress fail. See United States v. Wright, 16 F.3d 1429 (6th Cir. 1994); United States v. Tarazon, 989

F.2d 1045 (9th Cir. 1993); United States v. Wilson, 964 F.2d 807 (8th Cir. 1992). If a warrantless arrest

and seizure of the body of the arrested person, without the intervention of a judicial officer, is supported

by our precedent, it seems strange that when the law enforcement official requests the issuance of a

search warrant, based in part on the statement of an identified confidential informant whose statement is

against his penal interest, the veracity of the confidential informant should become, as in this case, the

primary focus.




                                                     15
       In our view, the statements of the confidential informant did not require corroboration to justify

the issuance of the search warrant because Lovelace’s statements against his penal interest, coupled with

the detail of his statement and his basis for knowledge, as well as the other alleged instances of bank

fraud, were sufficient to support a finding of probable cause.


       VIII. The District Court's Determination that the reference by the affiant to the fax
       constituted a false statement that was knowingly and intentionally made or with
reckless disregard for the truth


       Magistrate Judge Breen’s report and recommendation focused on the fact that the affiant Agent

Gicking relied on information supplied by a fellow agent and called the reference an act of negligence.

We need not pause on this issue because, even if we adopt Judge Donald’s analysis, the balance of the

affidavit justified the issuance of the warrants.


       IX.    The District Court’s Ruling concerning the surveillance tapes as referenced in
       Paragraph 37 of Gicking’s Affidavit


       Riddick’s counsel attacked the credibility and veracity of the CI, i.e., Danny Lovelace, at the

suppression hearing conducted by Magistrate Judge Breen. Counsel then undertook an attack on the

efforts of Gicking to corroborate the CI, i.e., Lovelace, by demonstrating the inaccuracy of the alleged

fax number at the bank. Counsel also attacked the representations of the affiant in paragraph 37 with

respect to the conclusions reached regarding Riddick’s participation in and knowledge of the arson of

the residence. During the hearing before Magistrate Judge Breen on January 29, 2002, Riddick’s

counsel indicated that he had copies of the surveillance tapes and argued that any rational person

listening to the tapes would find that they refute corroboration and thus constituted a misrepresentation

to Chief Judge Todd about corroboration. (See JA 346.) Later during the suppression hearing, seven

                                                    16
surveillance tapes were introduced into the record (JA 376) marked as Collective Exhibit 4.6 At the

conclusion of the hearing before the magistrate-judge, both sides indicated that they would provide

transcripts of the surveillance tapes. On March 2, 2002, counsel for Riddick filed a document described

as “Transcript of Audio Cassettes” and indicated it contained the transcripts of seven tapes dated March

2, March 18, March 22, March 29, April 16, April 26 and May 20, 1999. ( Docket # 122.) The

document was at some time given Bates-stamped page numbers and both Magistrate Judge Breen and

Judge Donald made references in their respective opinions to statements in the transcripts by reference

to the Bates numbered pages rather than to the Collective Exhibit 4.


       Both Magistrate Judge Breen and Judge Donald devoted a great deal of attention to the

transcripts in the context of whether the affiant had misrepresented the nature of the statements of

Riddick in the context of paragraph 37.


       The Report and Recommendation of Magistrate Judge Breen concluded:


               Based on the statements made on the tapes, it is the court’s view that Gicking’s
               representation in the search warrant affidavit that electronic surveillance
               confirmed Riddick participated in and had knowledge of the arson was not
               unsupported. In addition, the comments referred to by the defendant concerning
               drinking and Marla Lovelace’s possible involvement in the blaze were offhand
               and, in the context of the conversations in which they were made, were not
               sufficient to result in serious doubts on the part of the affiant as to the truth of the
               allegations contained in the affidavit.




               6
               Transcripts of five of the tapes are included in the Joint Appendix which detail the
       recorded conversation between Riddick and Hutcherson on 3/2/99; the recorded conversation
       between Lovelace and co-defendant Thomas on 3/22/99; the recorded conversation between
       Riddick and Lovelace on 3/29/99; the recorded conservation between Riddick and Lovelace on
       4/16/99; and the recorded conversation between Riddick and Lovelace on 4/26/99.

                                                  17
(JA 431.)


       Judge Donald, however, reached a different conclusion. In her Memorandum Opinion of March

22, 2004, Judge Donald concluded that “the surveillance tapes cannot support paragraph thirty-seven’s

claim that electronic surveillance allowed investigators to confirm [Riddick’s] participation and

knowledge in the Dogwood Drive arson.” (JA 591.)


               Defendant never admitted on tape any involvement in the arson and/or mail fraud.
               Moreover, . . . at no point in his four recorded conversations with [Riddick] does
               Lovelace mention his own culpability, let alone [Riddick’s] facilitation of this
               culpability. The most incriminating statements made by [Riddick] (and Thomas)
               consisted of their warnings to Lovelace that he should deny knowledge of what
               caused the fire. . . .


                       The absence of any statement by [Riddick] of his direct participation in
               the arson and/or mail fraud stands in stark contrast to the myriad cases supporting
               a finding of probable cause based on admissions in surveillance tapes. . . .


                       Additionally, [Riddick] was trying to collect insurance proceeds for the
               bank on its status as lienholder/third party beneficiary. He appeared to have
               trouble getting the insurance company to pay the claim, so his warnings to
               Lovelace - assuming he had no knowledge of Lovelace’s involvement in the arson
               - may have come from his legitimate fiduciary interest in getting the bank its
               money as quickly and efficiently as possible. . . .


                        Even if the Court assumes that [Riddick’s] repeated warnings
               demonstrated that he knew about Lovelace’s involvement in the arson after it
               occurred, these warnings do not show [Riddick’s] ex ante knowledge of or
               participation in the arson. . . . [T]he Court finds that the statements made do not
               rise to the level of ‘confirming’ [Riddick’s] ‘participation and knowledge in the
               arson at’ the Dogwood Drive house. Had the affidavit stated that the surveillance
               tapes ‘indicated’ or ‘suggested’ [Riddick’s] involvement, the Court would be
               more inclined to accept the statement.




                                                18
(JA 589-91.) As a result of this conclusion, Judge Donald further concluded that “paragraph thirty-

seven contains a false or materially misleading statement in violation of Franks and requires a re-reading

of the affidavit, with paragraph thirty-seven removed, to assess whether a substantial basis remains for

finding probable cause for the two search warrants.” (JA 591-92.)


                       Because Agents Gicking and Frizzell listened to the conversations and
               reviewed the surveillance tapes prior to writing the affidavit and swearing to its
               veracity before the issuing judge, they knew, or should have known, that
               paragraph thirty-seven misstated the value of the electronic surveillance tapes.
               Finally, paragraph thirty-seven’s statement is highly material because, in addition
               to the fax transmission false statement, it contains the only corroboration of
               Lovelace’s veracity and reliability within the affidavit. As a result, paragraph
               thirty-seven contains a false or materially misleading statement in violation of
               Franks and requires a re-reading of the affidavit, with paragraph thirty-seven
               removed, to assess whether a substantial basis remains for finding probable cause
               for the two search warrants.


(JA 591-92.)


       The effort undertaken by both Magistrate Judge Breen and Judge Donald with respect to the

surveillance tapes to determine whether Agent Gicking had misstated the value of the tapes in

attempting to corroborate Lovelace’s declaration was unnecessary. Even with Agent Gicking’s

statement regarding the electronic surveillance excised, the affidavit contained sufficient information

from Lovelace to support a finding of probable cause.


       X.      Conclusion




                                                    19
        For the foregoing reasons, the order of suppression is REVERSED and this case is REMANDED

for further action.7




                7
                   Riddick had advanced other claims in support of the motion to suppress. Judge Donald
        did not pass on those claims, and Riddick did not raise, by way of cross-appeal, a failure of
        Judge Donald to address those additional claims. We find that issues of suppression with regard
        to the issuance of the search warrant have been resolved and thus return this case to Judge Todd
        for trial.

                                                   20
