                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAR 2, 2009
                               No. 08-12209                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 07-00032-CR-2

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

TYRONE BOLDEN,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                                (March 2, 2009)


Before BIRCH, BLACK and HULL, Circuit Judges.

PER CURIAM:

     Tyrone Bolden, a federal prisoner convicted of possession with intent to
distribute 5 grams or more of cocaine base, 21 U.S.C. § 841(a)(1), and possession

of a firearm by a convicted felon, 18 U.S.C. § 922(g), appeals the district court’s

denial of his “Motion to Dismiss Search Warrant.” On appeal, Bolden argues the

search warrant used to search his father’s house was fatally flawed under Georgia

case law. He argues the affiant to the search warrant failed to confirm the identity

of the informant and, in any event, the information provided by the informant was

insufficient to obtain a search warrant, particularly as she denied at trial having

provided any tip to the police. Bolden also argues the district court order, barring

him from referencing the search warrant on direct examination, deprived him of a

meaningful defense. Finally, he challenges the effectiveness of his counsel’s

representation.

                       I. Motion to Dismiss Search Warrant

      In reviewing a district court’s denial of a motion to suppress, we review the

district court’s factual findings for clear error and its application of the law to those

facts de novo. United States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008).

Such review requires that all facts be construed “in the light most favorable to the

party prevailing in the district court[.]” Id. at 1074. Here, the prevailing party was

the Government. “It is established law of this Circuit that the admissibility in

federal court of the products of state searches and seizures is controlled by federal



                                            2
law.” United States v. Clay, 355 F.3d 1281, 1283 (11th Cir. 2004).

      “Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999). To prevail on a motion to suppress evidence

that was seized pursuant to a search warrant, based on allegations of falsity in the

supporting affidavit, the challenging party has the burden of establishing (1) the

affiant made the alleged misrepresentations or omissions knowingly or recklessly,

and (2) exclusion of the alleged misrepresentations or inclusion of the alleged

omissions would have resulted in a lack of probable cause. See United States v.

Novaton, 271 F.3d 968, 986-87 (11th Cir. 2001). In addition, it is well established

that an exception “to the requirements of both a warrant and probable cause is a

search that is conducted pursuant to consent.” Johnston v. Tampa Sports Auth.,

530 F.3d 1320, 1326 (11th Cir. 2008) (internal quotation marks omitted).

       Federal law controls the admissibility of evidence that is the product of a

state search and seizure, so Bolden’s arguments based on Georgia law are

unavailing. See Clay, 355 F.3d at 1283. After reviewing the record, we find the

district court’s conclusion that the search warrant was supported by probable cause

was not clearly erroneous. Furthermore, Bolden’s father, the homeowner,



                                           3
consented to the search of the property. For these reasons, the district court did not

err in denying Bolden’s motion to dismiss the search warrant.

                       II. Ineffective Assistance of Counsel

      We generally will not consider an ineffective-assistance-of-counsel claim

“raised on direct appeal where the district court did not entertain the claim nor

develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002). We will, however, consider such a claim on direct appeal “[i]f the record is

sufficiently developed[.]” Id. The Supreme Court in Massaro v. United States,

123 S. Ct. 1690 (2003), recognized that, although ineffectiveness claims generally

should be raised in a 28 U.S.C. § 2255 motion, “[t]here may be cases in which trial

counsel’s ineffectiveness is so apparent from the record that appellate counsel will

consider it advisable to raise the issue on direct appeal.” Id. at 1694-96.

      In this case, Bolden did not raise as an issue before the district court the

effectiveness of his counsel’s representation. Nor is the alleged ineffectiveness of

his counsel apparent from the record. Therefore, the record is insufficiently

developed for this Court to consider Bolden’s ineffective-assistance-of-counsel

claim, and we dismiss this claim.

      AFFIRMED in part, DISMISSED in part.




                                           4
