                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0522n.06

                                       Case No. 13-3844
                                                                                   FILED
                                                                               Jul 16, 2014
                                                                          DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE NORTHERN DISTRICT OF
ISAAC GREEN, JR.,                                 )       OHIO
                                                  )
       Defendant-Appellant.                       )
                                                  )       OPINION
_____________________________________             )

Before: SILER, GILMAN, and GIBBONS, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Isaac Green, Jr. was convicted by a jury on

firearms and counterfeiting charges.    He received concurrent sentences of 120 months of

imprisonment on the firearms-related charges and 162 months of imprisonment on the

counterfeiting charges. All of the tangible evidence against him was obtained by the police as a

result of a search warrant executed at his residence in June 2012. Green sought to suppress the

evidence on the basis of the allegedly defective search-warrant affidavit, which he claims was

founded on intentionally made false statements.

       The sole ground for Green’s appeal is the failure of the district court to grant him an

evidentiary hearing on his false-statements claim under Franks v. Delaware, 438 U.S. 154

(1978). For the reasons set forth below, we AFFIRM the judgment of the district court.
Case No. 13-3844
United States v. Isaac Green, Jr.
                                       I. BACKGROUND

A.     Factual background

       In June 2012, Officer Art Carter of the Youngstown Police Department swore out an

affidavit to search a single-family residence on Upland Avenue in Youngstown, Ohio. Officer

Carter’s affidavit described the alleged criminal activity as follows:

       1.     During the month of December 2011, officers of the Youngstown Police
       Department Vice Squad Unit, were approached by a reliable informant, who
       advised officers that a subject, unknown to the informant, was selling Crack
       Cocaine from 130 Upland. The Source further advised officers that the informant
       could purchase Crack Cocaine from said residence.

       2.      Based on the above, officers initiated an investigation and conducted
       random surveillance at 130 Upland. During the surveillance, officers observed
       numerous subjects go to 130 Upland, stay a short period of time and leave, such
       activity being common in the illegal sales of narcotics.

       3.      Also, during the month of December 2011, officers began receiving
       complaints from concerned citizens who live in the area about illegal sales of
       narcotics from the residence at 130 Upland.

       4.      During the week of December 12, 2011, Officer[s] Bigowsky [and]
       Aeppli met with a reliable informant [who] made a purchase of Crack Cocaine
       from John Doe at 130 Upland, under the controlled conditions to wit; officers met
       with and searched the informant with negative results. Officers then kept the
       informant under constant observation to and from the location. Upon returning,
       the informant turned over to officers suspected Crack Cocaine. The informant
       was searched a second time with negative results.

       5.      During the week of June 18, 2012, Officer[s] Carter [and] Voitus met with
       a reliable informant [who] made a purchase of Crack Cocaine from John Doe at
       130 Upland, under the same controlled conditions described in the previous
       paragraph. Upon returning, the informant turned over to officers suspected Crack
       Cocaine. The informant was searched a second time with negative results.

       6.      During the week of June 18, 2012, Officer[s] Voitus [and] Carter met with
       a reliable informant [who] made a purchase of Crack Cocaine from John Doe at

                                                -2-
Case No. 13-3844
United States v. Isaac Green, Jr.
       130 Upland, under the same controlled conditions described in the previous
       paragraph. Upon returning, the informant turned over to officer[s] suspected
       Crack Cocaine. The informant was searched a second time with negative results.

       7.     All three purchases of crack cocaine made during the weeks of December
       12, 2011, and June 18, 2012, were made from a subject, known to informant as,
       John Doe, described as M/B, 50’s, 5FT8IN, 150, Blk and Bro.

       8.      The exact dates of the Crack Cocaine purchases cannot be listed as it may
       reveal the identity of the informant.

       9.      The Crack Cocaine from December 12, 2011 and June 18, 2012 was field
       tested with positive results.

       10.    The informant has been to 130 Upland in the past 72 hours and observed
       Crack Cocaine on the premises.

       11.     The informant has been proven reliable in the past by supplying officers
       with information leading to the arrest of several subjects for narcotic violations
       and by supplying officers with information that officers were able to verify by
       their own independent investigation.

       12.     Officers are requesting a nighttime Search Warrant because:

               A. Cover of darkness will afford the officers greater protection and safety
               and allow officers to approach undetected so that items to be seized will
               not be destroyed.
               B. Subject named in Warrant is more likely to be present.
               C. Much [of the] activity described occurred during the night season.

       13.     Officers are requesting that the Court authorize the search for all persons
               on the premises because:

               A. The insidious nature of the contraband is such that those involved will
               act in secret and to the exclusion of innocent persons and possible
               informants. Thus, Affiant believes that no innocent persons will be
               present at the time of the search.
               B. Since Affiant has requested a nighttime Search Warrant, the
               probability that innocent persons will be present during the search is
               minimal.


                                              -3-
Case No. 13-3844
United States v. Isaac Green, Jr.


       A municipal judge reviewed and signed Officer Carter’s search-warrant application on

June 21, 2012. Later that evening, officers searched Green’s home and found Green sitting on a

couch in the living room. During the search of Green’s house and detached garage, the officers

discovered, among other things, loose crack cocaine, cocaine residue, digital scales, cash,

multiple computers, a computer printer, counterfeit money, and various firearms.

B.     Procedural background

       Green moved to suppress the evidence found during the search, arguing that Officer

Carter’s search-warrant affidavit was “bare bones” and thus did not establish probable cause.

One month later, Green filed a supplemental motion asserting that (1) the search-warrant

affidavit did not establish probable cause to search his detached garage, (2) Officer Carter

intentionally made false statements in his affidavit, and (3) Green was entitled to a hearing under

Franks v. Delaware, 438 U.S. 154 (1978). The district court denied Green’s motions.

                                         II. ANALYSIS

A.     Standard for a Franks hearing

       A defendant is entitled to a Franks hearing if he (1) “makes a substantial preliminary

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

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

is necessary to the finding of probable cause.” United States v. Graham, 275 F.3d 490, 505 (6th

Cir. 2001) (internal quotation marks omitted). We have previously explained that “[a] defendant

who challenges the veracity of statements made in an affidavit that formed the basis for a warrant

has a heavy burden.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990).

       The first prong of the Franks analysis (whether the defendant has made a substantial

preliminary showing of intentional or reckless falsity) is a factual question that we evaluate

                                               -4-
Case No. 13-3844
United States v. Isaac Green, Jr.
under the clear-error standard. See United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011)

(“The determination as to whether a statement made in an affidavit is made with reckless

disregard of the truth is a fact question.”) (internal quotation marks omitted); see also Graham,

275 F.3d at 505 (“[T]he district court’s factual findings are reviewed for clear error.”). If a

defendant makes this substantial preliminary showing, we turn to the second prong of the Franks

analysis by removing the allegedly false statement and asking whether the search-warrant

affidavit still supports a finding of probable cause. Graham, 275 F.3d at 505.

       The second prong of the Franks analysis (whether an allegedly false statement is

necessary to a finding of probable cause) is a legal question that we review de novo. Id.

(explaining that “conclusions of law are reviewed de novo”). Probable cause exists if the

remaining portions of the affidavit provide the court “with a basis for finding that there was a fair

probability that contraband or evidence of a crime would be found.” Id. at 504.

B.     Green’s arguments

       As a threshold matter, Green argues that Officer Carter deliberately falsified the entirety

of the substantive portions of the search-warrant affidavit because it is nearly identical to the

affidavit at issue in United States v. Pusey, 189 F. App’x 475 (6th Cir. 2006) (rejecting a Franks

challenge arising out of another search in Youngstown, Ohio). But this court has previously

determined that similar “boilerplate” arguments are without merit because the fact that a

search-warrant affidavit is an almost “word-for-word” copy of the affidavit in a prior case is

irrelevant “[a]s long as there is sufficient information to provide probable cause for the search.”

See United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996) (internal quotation marks

omitted); see also United States v. Moore, 661 F.3d 309, 312 (6th Cir. 2011) (upholding a largely




                                                -5-
Case No. 13-3844
United States v. Isaac Green, Jr.
boilerplate search-warrant affidavit where an unnamed confidential informant had witnessed the

defendant engaging in drug transactions).

        In other words, the fact that officers recycle boilerplate language—a phenomenon that

Green refers to as “uncanny coincidences between . . . affidavits”—does not necessarily mean

that those officers knowingly, intentionally, or recklessly included false statements. See Weaver,

99 F.3d at 1381 (explaining that “[t]he Fourth Amendment does not require an officer to reinvent

the wheel with each search warrant application”).         We therefore cannot accept Green’s

conclusory argument that Officer Carter falsified the entirety of the search-warrant affidavit

simply because it appears to have been adapted from a prior affidavit. See Bennett, 905 F.2d at

934 (explaining that, to make a substantial preliminary showing of intentional or reckless falsity

under Franks, a defendant’s “allegations must be more than conclusory”).

        Instead, this court’s well-settled framework for Franks hearings requires a defendant to

“point to specific false statements” and then “accompany his allegations with an offer of proof.”

United States v. Cummins, 912 F.2d 98, 101, 103 (6th Cir. 1990) (emphasis added)

(independently evaluating the defendant’s offer of proof in support of his Franks claim and

concluding that he “has failed to meet his burden of proof in establishing deliberate falsehood or

reckless disregard for the truth”).   If a defendant carries his burden of proof, then those

individual allegations—not the entire affidavit—are set aside and we review what remains to

decide the issue of probable cause. See Graham, 275 F.3d at 505 (explaining that if a defendant

makes a substantial preliminary showing of intentional or reckless falsity tied to individual

allegations, then we evaluate “the affidavit’s remaining content” rather than gaze skeptically at

the entirety of the affidavit).




                                              -6-
Case No. 13-3844
United States v. Isaac Green, Jr.
        We now turn to Green’s specific challenges to the search-warrant affidavit, which pertain

to (1) Green’s appearance; (2) the sum allegedly paid by the informant for varying amounts of

drugs; (3) Officer Carter’s employment history; (4) the lack of complaints from two of Green’s

neighbors about drug activity at Green’s residence; and (5) field reports stating that the drugs

obtained during the controlled purchases tested positive for heroin, not cocaine. Tellingly,

however, none of these allegations directly challenge the affidavit’s allegations that the three

controlled purchases in fact occurred. Thus, even if we assume arguendo that Green has made a

substantial preliminary showing that several statements tangentially related to the controlled

purchases were intentionally or recklessly falsified, his argument would still fail because even “a

single controlled purchase is sufficient to establish probable cause to believe that drugs are

present at the purchase location.” United States v. Archibald, 685 F.3d 553, 558 (6th Cir. 2012);

see also United States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006) (holding that there was

probable cause for the issuance of a search warrant where the officer’s “corroboration of events

that occurred during the controlled buy, as set forth in the affidavit, provide sufficient probable

cause”).

        Nor did Green actually make a substantial preliminary showing of intentional or reckless

falsity. His first allegation regarding the inconsistencies between the suspect’s description in the

search-warrant affidavit and Green’s description in the presentence report does not establish that

the affidavit was intentionally or recklessly falsified. A litany of reasons might justify these

differences, ranging from the informant’s honest though flawed recollection of the suspect’s

physical attributes, to the faulty transmission of this information to the police, to the passage of

time.   For these reasons, the 2013 presentence report, with its greater variance from the

search-warrant affidavit and the police reports, does not show that the controlled purchases never



                                               -7-
Case No. 13-3844
United States v. Isaac Green, Jr.
occurred.   The district court therefore did not clearly err in finding that “the informant’s

descriptions are not so significant that . . . Officer Carter’s statement was false.”

       Green has forfeited his next challenge pertaining to the amount of money that the

informant paid during the controlled purchases by raising the issue for the first time on appeal.

See United States v. Lopez-Medina, 461 F.3d 724, 738–39 (6th Cir. 2006) (“[W]hen a party has

brought a pretrial suppression motion, . . . any new suppression arguments raised for the first

time on appeal that were not contained in the original suppression motion will be deemed waived

under Rule 12(e)” of the Federal Rules of Criminal Procedure) (emphasis added). We arrive at

this conclusion given Green’s concession in his reply brief that “it is true that defense counsel

did not make these specific arguments in the suppression hearing.”

       Nor did the district court clearly err in concluding that Green failed to make a substantial

preliminary showing that Officer Carter intentionally or recklessly falsified his law-enforcement

experience. Although Officer Carter’s statements differ slightly between the search-warrant

affidavit and his trial testimony, Green has offered no evidence showing that Officer Carter

intentionally or recklessly falsified those portions of the affidavit. Moreover, Officer Carter’s

statements could simply be the result of negligence or mistake, neither of which entitles a

defendant to a Franks hearing.        See Cummins, 912 F.2d at 102 (internal quotation marks

omitted).

       Green next argues that two of Green’s neighbors testified that they had never observed

drug trafficking (or other illegal behavior) at Green’s residence.         But as the district court

correctly noted, the neighbors’ testimony “does not by itself mean that other citizens did not see

such activity or that Officer Carter himself did not observe such activity.” Moreover, even if the

allegation pertaining to neighbor complaints is removed, the affidavit would still contain



                                                 -8-
Case No. 13-3844
United States v. Isaac Green, Jr.
allegations pertaining to the three controlled drug purchases, the existence of which are sufficient

in themselves to support a finding of probable cause. See Archibald, 685 F.3d at 558.

       We further note that Green’s reliance on United States v. Black, No. 98-5155, 1999 WL

357759 (6th Cir. May 19, 1999), with regard to the “neighbors” issue is misplaced. The court in

Black remanded the case for a Franks hearing because a neighbor’s testimony that he had never

smelled marijuana on the premises called into question the likelihood that an officer smelled

marijuana prior to exiting his police vehicle. Id. at *3 (explaining that the neighbor had been on

Black’s property “numerous times and never smelled marijuana” and was thus “in a better

position to smell the marijuana than officers sitting inside a [police] vehicle”) By contrast, the

testimony of two of Green’s neighbors is insufficient to call into question the likelihood that drug

trafficking occurred on the premises, particularly considering that both neighbors admitted that

they were away from their homes for significant periods of time.

       Finally, Green disputes that the cocaine purchased by the informant was field-tested

“with positive results” because Officer Carter’s June 19, 2012 narcotics report shows a positive

result for heroin, not crack cocaine. But Green’s citation to the record is incomplete. Officer

Carter twice testified that the substance obtained during the controlled purchases was crack

cocaine. He attributed the heroin misclassification to human error, which is insufficient to make

a substantial preliminary showing that Officer Carter intentionally or recklessly falsified his

affidavit. See Cummins, 912 F.2d at 102.

                                     III.    CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




                                               -9-
