                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JULY 26, 2007
                               No. 07-10414                   THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                    D. C. Docket No. 06-00004-CR-CDL-4

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                     versus

MARK BRAMLETT,

                                                   Defendant-Appellant.


                         ________________________

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

                               (July 26, 2007)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Mark Bramlett appeals his conviction for possession with intent to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(viii). On appeal, Bramlett challenges the district court’s denial of his

motion to suppress evidence. After review, we affirm.

                                I. BACKGROUND

      A confidential informant (“CI”) approached members of the narcotics task

force of the Columbus, Georgia police department. The CI indicated that he could

buy methamphetamine from Bramlett at a residence at 2908 Lee Street. Task force

agents confirmed that Bramlett resided at the 2908 Lee Street address. Agents then

arranged for the CI to make a “controlled buy” from Bramlett at 2908 Lee Street.

The CI was searched, provided with money for the purchase and outfitted with an

electronic monitoring device. Agents followed the CI to Bramlett’s residence and

observed him enter the residence, where the CI purchased two ounces of

methamphetamine from Bramlett. Using the electronic monitory device, agents

were able to contemporaneously listen to and record the controlled buy from

Bramlett in his residence. Shortly thereafter, the CI returned to the agents with the

two ounces of methamphetamine purchased from Bramlett.

      While the controlled buy was being arranged, Agent Jon Memmo prepared a

request for a search warrant of the 2908 Lee Street residence and a supporting

affidavit. The supporting affidavit stated, among other things, that Agent Memmo



                                           2
had received information from a reliable CI that a quantity of methamphetamine

was located at 2908 Lee Street in the possession of Mark Bramlett and that the CI

had observed Bramlett in possession of methamphetamine within the last 72 hours.

The affidavit averred that the CI had “proven reliable in the past in that their

information ha[d] led to the seizure of a quantity of illegal drugs and the pending

arrest of at least one drug abuser.” The affidavit described the controlled buy and

stated that agents had observed the CI enter and exit the residence and return with

the methamphetamine and that the controlled buy had been monitored and

recorded by agents. The affidavit also stated that Bramlett was a “known drug

offender” who had been arrested for drug offenses in the past.

      While the controlled buy was being executed, Agent Memmo met with a

Georgia superior court judge with the prepared anticipatory warrant request. Agent

Memmo and the state judge maintained telephone contact with the investigating

agents at the scene during the controlled buy. Once agents at the scene confirmed

that the controlled buy had been completed, Agent Memmo signed the affidavit

and the state judge executed the search warrant.

      During the search of the 2908 Lee Street residence, agents found over 200

grams of methamphetamine and other drug paraphernalia. Bramlett was arrested

and charged by a federal grand jury with one count of possession with intent to



                                           3
distribute methamphetamine.

       Prior to trial, Bramlett filed a motion to suppress the evidence found during

the search of his home. Bramlett argued, inter alia, that the evidence should be

suppressed because Agent Memmo’s affidavit supporting the request for a search

warrant: (1)“fail[ed] to adequately inform the issuing Judge of the reliability of the

CI,” and (2) “fail[ed] to reveal sufficient facts to constitute probable cause for the

issuance of the search warrant.”1 Bramlett’s motion to dismiss did not specifically

argue that Agent Memmo’s affidavit contained false statements, although Bramlett

now makes this the focus of his appeal.

       The district court held an evidentiary hearing on Bramlett’s motion to

suppress. The government called Agent Memmo to testify to the procedures used

to conduct the controlled buy and to obtain the search warrant.

       On cross-examination, defense counsel questioned Agent Memmo about the

meaning of his averments in the affidavit that the CI had proven reliable in the past

and that the CI’s information had led to the seizure of drugs and at least one

pending arrest. Agent Memmo explained that he had been referring both to the

controlled buy at 2908 Lee Street and to an earlier controlled buy the CI performed


       1
        Bramlett’s motion to suppress also argued that Agent Memmo’s affidavit failed to
provide sufficient facts to support the issuance of a “no knock” warrant and that the scope of the
search warrant was overbroad because it permitted law enforcement to search motor vehicles and
persons found on the premises.

                                                4
for the Phenix City, Alabama narcotics task force.

       According to Agent Memmo, Phenix City police arrested the CI for

possession of methamphetamine. In hopes of obtaining a reduced sentence, the CI

agreed to cooperate and successfully performed a controlled buy with an unnamed

individual.

       The CI told Phenix City police that he could also buy drugs from Bramlett in

Columbus, Georgia.2 The Phenix City police spoke with Sergeant Price of the

Columbus police and referred him to the CI. At that time, the drug seller in the

Phenix City controlled buy had not yet been arrested, but his or her arrest was

imminent.

       Apart from cross-examining Agent Memmo, Bramlett presented no evidence

at the hearing. At the conclusion of the hearing, the district court denied

Bramlett’s motion to suppress. The district court found that Agent Memmo’s

affidavit was sufficient to establish probable cause and that the government had put

up sufficient evidence of the CI’s reliability.

       Following a trial, the jury found Bramlett guilty. The district court

sentenced Bramlett to 121 months’ imprisonment. Bramlett filed this appeal.

                                   II. DISCUSSION


       2
        Phenix City, Alabama is on the Alabama-Georgia border and is approximately two miles
away from Columbus, Georgia.

                                             5
       On appeal, Bramlett argues that Agent Memmo’s affidavit contained false

information about the reliability of the CI and that, once this information is

omitted, the affidavit is insufficient to establish probable cause. Specifically,

Bramlett argues that Agent Memmo’s statement in his affidavit that the CI’s

information had “led to the seizure of a quantity of illegal drugs and the pending

arrest of at least one drug abuser” referred to only the just-completed controlled

buy from Bramlett at 2908 Lee Street. Bramlett complains that, contrary to Agent

Memmo’s averment, Agent Memmo’s hearing testimony established that the CI

had not been proven reliable in any other independent investigation.

       “If a defendant demonstrates by a preponderance of the evidence that an

affidavit used to procure a search warrant contains intentionally or recklessly false

statements and that, the false statements aside, the affidavit is insufficient to

establish probable cause, the district court must void the search warrant and

exclude the fruits of the search.” United States v. Anderton, 136 F.3d 747, 749

(11th Cir. 1998).3 Here, Bramlett failed to show either that Agent Memmo’s

averments were false or that, without those averments, Agent Memmo’s affidavit

failed to establish probable cause.


       3
        The government argues that Bramlett raises this particular argument for the first time on
appeal and that thus we must review only for plain error. We need not address this issue
because, under either a de novo or a plain error standard, we conclude that the district court
properly denied Bramlett’s motion to suppress.

                                                6
      At the evidentiary hearing, Agent Memmo testified that when he stated in

the affidavit that the CI’s information had led to the seizure of illegal drugs and a

pending arrest, he was referring both to the controlled buy at 2908 Lee Street and

also to the previous controlled buy conducted in Phenix City. Furthermore, Agent

Memmo explained that at the time he prepared his affidavit, the Phenix City police

had not yet arrested the subject of the Phenix City controlled buy, but an arrest was

imminent. Bramlett presented no evidence to contradict this testimony. Thus,

Bramlett failed to meet his burden to show that Agent Memmo’s affidavit

contained intentionally or recklessly false statements.

      Furthermore, without the statements in the affidavit regarding the CI’s past

reliability, there was a monitored controlled buy and “sufficient independent

corroboration of [the] informant’s information,” and, thus, no need to prove the

CI’s reliability. United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002)

(quotation marks omitted). In fact, the investigating agents orchestrated the

controlled buy, observed the CI enter and exit Bramlett’s residence and return with

methamphetamine, and monitored and recorded the transaction as it occurred.

Agents also independently verified that the residence belonged to Bramlett. All

this information was conveyed to the issuing state judge. See Chapman v. State,

354 S.E.2d 149, 151 (Ga. 1987). Thus, the affidavit and the agent’s testimony to



                                           7
the state judge about the completion of the controlled buy at 2908 Lee Street

established “a connection between the defendant and the residence to be searched

and a link between the residence and [the] criminal activity.” See Martin, 297 F.3d

at 1314.4

       For these reasons, the district court did not err in denying Bramlett’s motion

to suppress the evidence found in the search of his residence.

       AFFIRMED.




       4
        Bramlett suggests that once the informant had completed the controlled buy at
Bramlett’s residence, there was no evidence that Bramlett’s residence contained any more
methamphetamine. Bramlett points to Agent Memmo’s testimony acknowledging that, at the
time, agents did not know whether Bramlett had sold the CI his entire supply of
methamphetamine. However, law enforcement need not prove to a certainty that contraband or
evidence will be found at the location to be searched; only a “fair probability” is required.
United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999); see also United States v.
Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995). Given that Bramlett had just sold the CI
methamphetamine from his residence, there was a fair probability that Bramlett had more
methamphetamine at his residence.

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