           Case: 11-15185   Date Filed: 07/12/2012   Page: 1 of 7

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 11-15185
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:10-cr-00266-CG-C-1



UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                  versus

NATHAN ALLEN RAILEY,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                             (July 12, 2012)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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      Nathan Allen Railey appeals his convictions for production and attempted

production of child pornography by a parent, in violation of 18 U.S.C. § 2251(b), and

for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On

appeal, Railey argues that: (1) the district court erred when it refused to grant his

request for a Franks1 hearing to determine whether Mobile Police Detective LaTonya

Thompson knowingly or recklessly submitted false statements in her affidavit in

support of a state search warrant that resulted in the collection of evidence later used

against him at trial; and (2) the district court erred when it determined that, even

though the warrant was unsupported by probable cause, the evidence gathered

pursuant to the search warrant was admissible against him at trial because of the

police’s reasonable, good-faith reliance on the search warrant. After thorough

review, we affirm.

      We review the district court’s ruling on a motion to suppress under a mixed

standard, reviewing factual findings for clear error, and the application of law to those

facts de novo. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

While we generally review the district court’s decision not to grant an evidentiary

hearing on a suppression motion for an abuse of discretion, we need not determine

the standard of review for the denial of a Franks hearing where the more exacting de


      1
          Franks v. Delaware, 438 U.S. 154 (1978).

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novo standard of review is satisfied. United States v. Sarras, 575 F.3d 1191, 1218

n.37 (11th Cir. 2009).      Furthermore, we review de novo the district court’s

determination of objective good faith, but the underlying facts on which that

determination is based are binding on appeal unless clearly erroneous. United States

v. Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003).

      Under the Fourth Amendment, a “Franks” hearing must be held “where the

defendant 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 if the allegedly false statement is necessary to the finding

of probable cause.” Franks, 438 U.S. at 155-56. In order to be entitled an evidentiary

hearing, the defendant must allege deliberate falsehood or reckless disregard for the

truth, not mere negligence, and those allegations must be accompanied by an offer of

proof. Id. at 171. This requirement is not lightly met. See United States v. Arbolaez,

450 F.3d 1283, 1294 (11th Cir. 2006). A defendant must also show that, absent the

alleged misrepresentations or omissions, probable cause would have been lacking.

United States v. Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009).

      Generally, the suppression of evidence gathered pursuant to an invalid search

warrant is appropriate when it deters police conduct that violates the Fourth

Amendment. Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 2426-27 (2011).

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However, evidence obtained by the police acting in reasonable, good-faith reliance

on a search warrant that is subsequently found to be lacking probable cause is still

admissible. United States v. Leon, 468 U.S. 897, 922 (1984). Regardless, the

good-faith exception to the warrant requirement will not apply when the issuing judge

was misled by information in an affidavit that the affiant knew was false or submitted

in reckless disregard for the truth. Id. at 923.

      Here, the district court did not err when it declined to conduct a Franks hearing

because Railey did not make the requisite substantial preliminary showing required

to merit a Franks hearing -- that Detective Thompson knowingly, or with reckless

disregard for the truth, asserted false statements in her affidavit in support of the

search warrant. As the record shows, Detective Thompson averred in her affidavit

that (1) the victims had told their mother that their step-father, Railey, had touched

them on their vaginal area and rear-end inside and outside of their clothes; (2) the

mother believed that her ex-husband, Railey, possibly had taken photographs of her

children; (3) the mother had discovered an ink pen camera in her daughter’s

bathroom; and (4) the ink pen camera had been placed inside a toothbrush holder that

was cut for better visibility. Thompson later testified, however, that the mother had

found the toothbrush holder, with a hole cut in the middle of it, in her own bedroom


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(and not the daughters’ bathroom), and that Thompson’s statement that the toothbrush

holder had been cut for better visibility “was an assumption.” Railey therefore

complains that the statements in the affidavit were false because “[the mother] did not

find the pen camera in the supposed toothbrush holder. The ‘toothbrush’ holder was

located in another room not the bedroom. [The mother] found a toothbrush holder

and decided that the pen camera could be placed inside [of it].”

      While Detective Thompson later admitted that she had incorrectly assumed, in

the affidavit, that the toothbrush holder had been used to house the pen camera,

Railey has made no showing, aside from a bald assertion, that Thompson inserted her

assumption with knowledge or in reckless disregard for the truth. See Arbolaez, 450

F.3d at 1294. Indeed, there is nothing in Thompson’s testimony to indicate any

knowledge or reckless disregard for the truth; instead, Thompson’s testimony shows

only that she negligently included in the affidavit a personal assumption about the use

of the toothbrush holder. Furthermore, even ignoring Thompson’s statements in the

affidavit about the toothbrush holder, the affidavit still would have contained

information obtained from the victims that a crime had been committed and that the

mother had “discovered an ink pen camera in her daughter[s’] bathroom.” Thus,

based on these unchallenged assertions in the affidavit, the state court’s probable


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cause determination would have been unaffected, see Kapordelis, 569 F.3d at 1309,

and the district court did not err when it determined that Railey had not made the

requisite showing to merit a Franks hearing.

      Similarly, the district court did not err when it determined that the police

reasonably relied on the search warrant and affidavit in good faith. First, the district

court determined that the search warrant lacked probable cause, but for reasons other

than Detective Thompson’s misstatements -- to wit, that the state search warrant

lacked    particularly because the “dots [were] not adequately connected.”

Nevertheless, the district court concluded that the evidence collected pursuant to the

invalid warrant was admissible under the good-faith exception to the exclusionary

rule, since the affidavit did provide information obtained from the victims that a

crime had been committed and that the pen-camera was found in the girls’ bathroom.

Further, as we’ve already discussed, Railey did not show that Detective Thompson

knowingly or recklessly misled the state issuing judge with her affidavit. Because

Thompson’s insertion of a personal assumption into her affidavit was, at worst,

negligent, see Leon, 468 U.S. at 923, the district court did not err when it determined

that the police reasonably relied in good-faith on the search warrant, in spite of

Thompson’s misstatements. Accordingly, we affirm.


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AFFIRMED.




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