11-5327-cr
United States v. Morris

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of January, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
                    Circuit Judges,
         KENNETH M. KARAS,
                    District Judge.*

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UNITED STATES OF AMERICA,
                   Appellee,
               v.                                                                       No. 11-5327-cr

MICHAEL MORRIS,
                                       Defendant-Appellant.
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APPEARING FOR APPELLANT:                                   TRACY HAYES (Hillary K. Green, on the brief),
                                                           Federal Public Defender’s Office, Western
                                                           District of New York, Buffalo, New York.

APPEARING FOR APPELLEE:                                   MONICA J. RICHARDS, Assistant United States
                                                          Attorney, for William J. Hochul, Jr., United States
                                                          Attorney for the Western District of New York,
                                                          Buffalo, New York.



           *
        The Honorable Kenneth M. Karas, of the United States District Court for the
Southern District of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Western District

of New York (William M. Skretney, Chief Judge; Jeremiah J. McCarthy, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on December 22, 2011, is AFFIRMED.

       Defendant Michael Morris appeals from a judgment of conviction, following a jury

trial, for unlawful possession of cocaine base with intent to distribute, see 21 U.S.C.

§ 841(a)(1), (b)(1)(C), and maintaining a drug-involved premises, see 21 U.S.C. § 856(a)(1).

Morris challenges the district court’s refusal to suppress certain evidence and its decision to

admit other evidence. He also challenges the sufficiency of the evidence admitted to prove

an intent to distribute drugs. We assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Suppression Challenge

       Morris argues that the district court erred in denying his motion to suppress the

evidence seized from his residence at 97 Saint Joseph Street, Buffalo, New York, without

affording him a full hearing to test the veracity of statements supporting the search warrant.

See Franks v. Delaware, 438 U.S. 154 (1978). He further faults the district court’s finding

that the warrant was supported by probable cause. See U.S. Const. Amend IV. Both

arguments are meritless.

       A.     Franks Hearing

       To secure a Franks hearing, a defendant must both (1) make a “substantial preliminary

showing that a false statement knowingly and intentionally, or with reckless disregard for the

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truth, was included by the affiant in the warrant affidavit” and (2) show that “the allegedly

false statement [was] necessary to the finding of probable cause.” Franks v. Delaware, 438

U.S. at 155–56; accord United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008). Morris

claims to have satisfied this requirement by raising challenges to warrant statements that a

confidential informant (“CI”) purchased drugs at the searched residence. We review a

district court’s decision to deny a Franks hearing only for clear error, see United States v.

One Parcel of Prop. at 15 Black Ledge Drive, 897 F.2d 97, 100 (2d Cir. 1990), which is not

evident here.1

       At the suppression hearing conducted before the magistrate judge, City Judge Craig

D. Hannah testified that he issued the challenged warrant only after hearing directly from the

CI who, under oath, reported making recent controlled and non-controlled purchases of crack

cocaine at 97 Saint Joseph Street. Detective Thomas Doctor, who appeared before Judge

Hannah with the CI, testified at the hearing that he observed the controlled buy on January

2, 2009. Additionally, the government offered corroborating documentary evidence of the

controlled buy, such as the disbursement form for the money used in making the purchase

and the request for a lab analysis of the purchased substance.2 Both Judge Hannah and

Detective Doctor further testified to the CI’s past record of reliability.


       1
       We would, moreover, reach the same conclusion on de novo review. See generally
United States v. Falso, 544 F.3d at 126 n.21 (noting circuit split as to whether review
standard is de novo or clear error, and suggesting that issue may remain open in this circuit).
       2
         Following the suppression hearing, the government submitted the completed lab
analysis to the court, which indicated that the purchased substance was cocaine, not cocaine
base.

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       In challenging this evidence of drug purchases, Morris notes that Detective Doctor’s

warrant application did not specifically mention a controlled buy, testimony at the

evidentiary hearings exposed discrepancies as to the date of the controlled buy, the

government never produced the informant, and neither the search warrant application nor

Judge Hannah’s notes of the CI’s testimony refer to police surveillance of the CI’s non-

controlled buys. These omissions are not enough to constitute the “substantial preliminary

showing” of falsity necessary to justify a Franks hearing. See 438 U.S. at 155–56 (emphasis

added). Accordingly, we identify no error in the district court’s failure to conduct a more

expansive hearing on the credibility of the application.

       B.     Probable Cause

       Morris submits that, in any event, the district court erred in adopting the magistrate

judge’s finding of probable cause. On de novo review, see United States v. Irving, 452 F.3d

110, 125 (2d Cir. 2006), we concur in the probable cause assessment.

       In urging otherwise, Morris argues that (1) he lived in a two-family dwelling and

neither the CI nor Detective Doctor ever specified the particular apartment to be searched;

(2) because the CI remained outside 97 Saint Joseph Street during the controlled buy, it was

“possible” that the seller “George” had taken the CI from 105 to 97 Saint Joseph to “take the

heat off himself” rather than to retrieve drugs from the latter location; and (3) there was no

evidence that “George” had control over Morris’s residence.             The arguments are

unconvincing.



                                              4
       First, Judge Hannah’s notes of the CI’s testimony, Detective Doctor’s application for

the search warrant, and the search warrant itself, all clearly identify the “lower” dwelling at

97 Saint Joseph Street as the unit to be searched. The warrant application also states that “CI

has been to the afore[]mentioned address and has purchased crack cocaine for money.” J.A.

229. Second, the mere possibility that “George” did not retrieve the drugs from inside

Morris’s home did not negate probable cause that “George” did just that. See Illinois v.

Gates, 462 U.S. 213, 238 (1983); United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011)

(“[P]robable cause to search is demonstrated where the totality of circumstances indicates

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

(internal quotation marks omitted)). Third, because the issuing judge found that probable

cause existed as to the lower dwelling, there was no need to establish “George’s” control

over that unit. See United States v. Clark, 638 F.3d at 94 (stating that probable cause as to

specific apartment in multi-family dwelling authorizes search of that apartment).

       Further, because the warrant was supported by probable cause, we necessarily reject

Morris’s challenge to the district court’s alternative finding that the executing officers relied

on the warrant in good faith. See United States v. Leon, 468 U.S. 897 (1984). We note only

that, even if probable cause were lacking—which it is not—Judge Hannah’s failure to record

the CI’s testimony in accordance with state law, and his decision to credit the CI’s testimony

despite his active drug use, would not manifest an abandonment of Judge Hannah’s judicial

role so as to preclude reliance on Leon. See United States v. Clark, 638 F.3d at 101 (holding

that legal error in probable cause determination does not, by itself, indicate abandonment of

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judicial role); United States v. Smith, 9 F.3d 1007, 1013–14 (2d Cir. 1993) (holding that

failure to follow state law requiring issuing judge to record testimony did not affect validity

of warrant); see also Herring v. United States, 555 U.S. 135, 140 (2009) (emphasizing that

suppression is last resort for error).

2.     Evidentiary Challenge

       Morris’s strongest argument protests the irrelevant, potentially prejudicial background

testimony elicited by the government from police witnesses. Lieutenant Lyon, testifying

about his duties in the narcotics unit, said, “I would pass [citizen complaints] on to

detectives, they would investigate them. And if there was any merit to them, they would then

try to obtain a search warrant.” J.A. 419 (emphasis added). Detective Donovan, testifying

about his duties in the execution of search warrants, said, “We actually utilize informants to

make purchases. Any time we do a search warrant in the City of Buffalo, we have a control

buy at that location, so we utilize . . . informants to make those purchases.” J.A. 439. These

statements, which did not constitute competent evidence of the defendant’s guilt, tended to

bolster the government’s case by suggesting to the jury that the police would not seek a

warrant, such as the warrant issued for the search of Morris’s apartment, without the matter

having first been investigated by detectives and found to have merit and without a controlled

buy having been done at the premises. The testimony was improper. It should not have been

offered, or received. Nonetheless, on the present record, the error was harmless in light of

the drug evidence seized from the home. This evidence permits us to conclude “with fair

assurance” that the officers’ general testimony about citizen complaints and controlled buys

did not “substantially influence the jury.” Id. (internal quotation marks omitted).

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3.     Sufficiency of the Evidence

       Morris also argues that the evidence was insufficient at trial to demonstrate his intent

to distribute drugs. When we consider the drugs and drug paraphernalia seized, together with

Mrs. Morris’s testimony that neither she nor her husband were drug users but that he sold

drugs regularly, we can hardly conclude that no rational jury could have found an intent to

distribute proved beyond a reasonable doubt. Rather, a jury could easily have concluded

from this evidence that Morris was guilty of the drug distribution charges, notwithstanding

the small amount of cocaine seized from Morris’s home. See Jackson v. Virginia, 443 U.S.

307, 319 (1979); accord United States v. Desnoyers, 637 F.3d 105, 109 (2d Cir. 2011).

       We have considered Morris’s remaining arguments and conclude that they are without

merit. The judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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