                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4843



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ROBERT EDWARD PATTERSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (CR-04-49)


Submitted:   March 21, 2006                 Decided:   March 31, 2006


Before WILLIAMS, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jeffrey B. Welty, Durham, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     After entering a conditional guilty plea to possession of a

firearm by a prior felon, Robert Edward Patterson now appeals the

district court’s denial of his motions for an evidentiary hearing

regarding an allegedly defective search warrant pursuant to Franks

v. Delaware, 438 U.S. 154 (1978), and to suppress the firearms

seized under the warrant.      Because we conclude that, even after

excising the challenged portions of the warrant, the warrant is

supported by probable cause, we affirm.



                                       I.

     On March 19, 2002, Agent Kelly H. Fields of the Harnett County

Sheriff’s Office filed a search warrant application for Patterson’s

residence in Broadway, North Carolina.          In his warrant affidavit,

Agent   Fields   attested   that   a    reliable   confidential   informant

observed a quantity of marijuana at Patterson’s residence within

the preceding seventy-two hours.            Following the issuance of the

warrant, the officers seized, among other things, several plastic

bags containing pills, marijuana, and bullets from Patterson’s

residence. Ultimately, however, the charges arising from the drugs

and associated paraphernalia were dismissed in North Carolina state

court on September 3, 2002.

     On November 7, 2003, Lieutenant John C. Holly of the Harnett

County Drug Task Force prepared a second search warrant application


                                       2
for Patterson’s residence.     In the application, Lieutenant Holly

attested:

     Applicant has received more than a dozen complaints
     stating that suspect Robert Patterson is selling
     Marijuana from his home described in this application.
     A review of the suspect’s criminal history indicates that
     Robert Patterson has had several drug related arrest[s]
     and charges in Harnett County in the past. Applicant has
     received information from numerous confidential sources
     that indicate suspect Patterson is involved in the
     illegal s[ale] and delivery of Marijuana. In addition to
     the above, applicant has been contacted by a confidential
     source of information, hereafter referred to as CSI,
     within 72 hours of the date and time of this application.
     The aforementioned CSI reported to applicant that they
     have known suspect Patterson for several years and that
     they have bought Marijuana from him in the past. The
     aforementioned CSI participated in “controlled purchase”
     of Marijuana within 72 hours of the date and time of this
     application.

J.A. 55.    After the issuance of the warrant, the officers seized

six bags containing marijuana, pills, white powder residue, and

rolling paper from Patterson’s residence.

     On November 20, 2003, Agent Fields prepared a third search

warrant application, which is the subject of this appeal, for

Patterson’s residence.    Agent Fields and two other federal agents

had visited Patterson’s residence earlier in the evening to conduct

a search.     When Patterson refused to give consent, the federal

agents detained Patterson while Agent Fields prepared the warrant.

     The third warrant application differed from the previous

applications in two significant respects.              First, the warrant

application    sought   permission       to   seize   weapons   present   at

Patterson’s residence.    Second, the warrant application referenced

                                     3
the prior searches.   Specifically, Agent Fields attested that the

officers had conducted a search at Patterson’s residence yielding

controlled substances and drug paraphernalia at the first search,

but erroneously recorded the date as March 19, 2003, rather than

March 19, 2002.   Agent Fields also described the second search at

Patterson’s   residence,   stating       that   he   and   Lieutenant   Holly

observed weapons and had seized controlled substances and drug

paraphernalia.

     With respect to the factual predicate for the instant search,

Agent Fields asserted:

     ON 11/20/2003 THE HARNETT COUNTY SHERIFF’S OFFICE AND THE
     UNITED STATES DEPARTMENT OF JUSTICE BUREAU OF ALCOHOL,
     TOBACCO, FIREARMS, AND EXPLOSIVES ARRIVED AT ROBERT
     EDWARD PATTERSON[’S] RESIDENCE [LOCATED] AT 407 YANKEE
     LANE BROADWAY, NC. WHEN AGENTS ARRIVED AT THE RESIDENCE
     AGENT FIELDS OBSERVED ROBERT EDWARD PATTERSON LOOK
     THROUGH THE GLASS STORM DOOR AND REMOVE[] AN UNKNOWN
     OBJECT FROM HIS FRONT POCKET OF HIS JACKET AND PLACE IT
     IN OR AROUND A CABINET WHEN THE AGENTS ARRIVED. AGENT
     FIELDS AND LT[.] HOLLY APPROACHED THE RESIDENCE AND A
     STRONG ODOR OF MARIJUANA WAS DETECTED COMING FROM INSIDE
     THE RESIDENCE. AGENT FIELDS CONDUCTED AN INTERVIEW WITH
     JEFFERY HAROLD CAMERON AND CHRISTOPHER JASON THOMAS [WHO]
     WERE INSIDE THE RESIDENCE WHEN AGENTS ARRIVED.      MR[.]
     JEFFERY HAROLD CAMERON STATED THAT MARIJUANA HAD BEEN
     SMOKED INSIDE THE RESIDENCE PRIOR TO HIM ARRIVING AT THE
     RESIDENCE BUT WAS UNAWARE OF WHO WAS SMOKING THE
     MARIJUANA. A CONSENT SEARCH OF MR[.] CHRISTOPHER JASON
     THOMAS[’S] VEHICLE REVEALED A PLASTIC BAG CONTAINING 7.5
     GRAMS OF MARIJUANA.

J.A. 69.   Upon the issuance of the third warrant, the officers

seized several firearms and ammunition, a pill bottle containing

eighty-one endocet pills, a marijuana blunt, a bag filled with

marijuana, and rolling papers from Patterson’s residence.

                                     4
       On February 18, 2004, Patterson was formally indicted by a

grand jury for possession of a firearm as a prior felon, in

violation of 18 U.S.C. §§ 922(g)(1) & 924.          Patterson subsequently

filed a motion for a Franks hearing and motion to suppress the

evidence obtained during the third (November 20, 2003) search.             In

his brief, Patterson asserted that Agent Fields knowingly proffered

false and incomplete information in the third warrant application

with respect to: (1) the date of the first (March 19, 2002) search;

(2) the fact that the drug charges related to the first search had

been dismissed; and (3) the officers’ conversation with Cameron.

Alternatively, Patterson argued that the third warrant was invalid

because it referenced the second warrant, which, according to him,

lacked probable cause.         Patterson also contended that the third

warrant was overly broad in authorizing the search and seizure of

weapons.   Finally, Patterson claimed that the warrants all stemmed

from   Lieutenant   Holly’s     personal   animus    against   him   because

Patterson had dated Lieutenant Holly’s sister and attempted to hit

Lieutenant Holly with a car (resulting in Lieutenant Holly’s

shooting at Patterson).

       Patterson   submitted    the   three   executed   warrants    and   an

affidavit from his counsel in support of his motions.                In his

affidavit, counsel attested that he spoke with Cameron, one of the

individuals identified in the third warrant, who apparently said

that (1) Lieutenant Holly personally disliked Patterson because he


                                      5
had dated Lieutenant Holly’s sister; and (2) there was no smell of

marijuana in the yard on November 20, 2003.                 According to counsel,

Cameron    further    stated        that       when   the    officers    approached

Patterson’s residence on November 20, 2003, they questioned him and

Thomas    separately.        Cameron       claimed    that    he   denied    smoking

marijuana with Thomas and Patterson, and that he did not know

whether anyone had been smoking marijuana prior to his arrival at

Patterson’s residence.

     On   May   7,   2004,    the    magistrate       judge   issued     a   detailed

memorandum and recommendation (“M&R”), which advised that both

motions be denied.      First, the M&R found that Patterson failed to

establish that the third warrant contained false statements or

material omissions, or that any such statements or omissions were

necessary to support the probable cause finding.                   Second, the M&R

concluded that the remaining factual basis underlying the third

warrant supported the probable cause determination.                     Finally, the

M&R stated that the warrant was not overly broad with respect to

authorizing the seizure of firearms.

     Patterson timely filed objections to the M&R, essentially

reiterating his original arguments.               For the first time, however,

Patterson submitted the formal affidavits of both Cameron and

Thomas, who confirmed the representations made by Patterson’s

counsel in his affidavit.




                                           6
       On June 6, 2004, the district court denied the motions and

adopted the M&R in its entirety.               Subsequently, Patterson executed

a   conditional      plea    agreement        to    the   firearm    count     in    the

indictment, reserving his right to appeal the district court’s June

6, 2004 order.       The district court accepted the plea.               Patterson

now appeals the denial of his pretrial motions.



                                         II.

                                         A.

       On appeal, Patterson first attacks the veracity of the third

warrant, asserting that he was entitled to a Franks hearing based

on the warrant’s allegedly false statements and material omissions.

The district court found that (1) the erroneous date ascribed to

the first search and omitted information regarding the dismissal of

criminal    charges    arising      from       that   search    were   innocent       or

otherwise negligent mistakes; (2) counsel’s affidavit attesting to

Cameron’s recollection of the events was insufficient to rebut the

facts related in the warrant affidavit; and (3) the remaining facts

in the warrant affidavit, after excising the challenged portions,

were   nevertheless       sufficient       to      support   the    probable    cause

determination.        For these reasons, the district court denied

Patterson’s motion for a Franks hearing.

       We   review   de     novo   the   district         court’s   probable        cause

determination     under     the    Fourth       Amendment.      United   States        v.


                                           7
Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996).         Under Franks, a

defendant may challenge a facially valid affidavit supporting a

search warrant based on 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 . . . the allegedly false statement is necessary to

the finding of probable cause.”      Franks, 438 U.S. at 155-56.

Because, however, there exists a “strong presumption of validity

with respect to the affidavit supporting the search warrant,” id.

at 171, the Franks rule has “limited scope,”   id. at 167.   Indeed,

the defendant bears a heavy burden in showing the entitlement to a

Franks hearing, because Franks requires the defendant to establish

a subjective component, that the affiant intended to deceive the

magistrate, and an objective component, that, without the falsified

information, the warrant lacked probable cause.1    Id. at 171-72;


     1
      In Franks, the Supreme Court specifically detailed the
evidentiary requirements necessary to obtain an evidentiary hearing
on a warrant affidavit’s integrity:

     To mandate an evidentiary hearing, the challenger’s
     attack must be more than conclusory and must be supported
     by more than a mere desire to cross-examine. There must
     be allegations of deliberate falsehood or of reckless
     disregard for the truth, and those allegations must be
     accompanied by an offer of proof. They should point out
     specifically the portion of the warrant affidavit that is
     claimed to be false; and they should be accompanied by a
     statement of supporting reasons. Affidavits of sworn or
     otherwise reliable statements of witnesses should be
     furnished, or their absence satisfactorily explained.
     Allegations of negligence or innocent mistake are
     insufficient.     The deliberate falsity or reckless

                                8
United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994) (“With

the defendant’s burden in attacking a search authorized by a

facially   valid     warrant     so   heavy,   so    too   is     his   burden   in

establishing the need for a hearing on the issue.”); United States

v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (the defendant must

satisfy both the subjective and objective components of the Franks

rule to be entitled to a hearing).

       Based on these principles, we agree with the district court

that    Patterson    has     failed     to   establish     that    Agent   Fields

intentionally       or     recklessly    proffered    false       or    incomplete

information   in     his    warrant     affidavit.       With   respect    to    the

identified errors related to the first search, Patterson has, at

best, shown that Agent Fields committed innocent or negligent

errors in ascribing the wrong year to the first search and failing

to mention the dismissal of the criminal charges arising from that

search.    Franks, 438 U.S. at 171 (“Allegations of negligence or

innocent mistake are insufficient.”).            There simply is not enough

for us to infer bad motive from the fact of these errors alone.



       disregard whose impeachment is permitted today is only
       that of the affiant, not of any nongovernmental
       informant. Finally, if these requirements are met, and
       if, when material that is the subject of the alleged
       falsity or reckless disregard is set to one side, there
       remains sufficient content in the warrant affidavit to
       support a finding of probable cause, no hearing is
       required.

Franks, 438 U.S. at 171-72.

                                         9
See Colkley, 899 F.2d at 301 (“Franks protects against omissions

that       are   designed    to    mislead,     or    that    are   made   in   reckless

disregard of whether they would mislead, the magistrate.” (emphasis

in original and internal citations omitted)); id. (finding that the

agent’s failure to include photospread information in the search

warrant application fell “far short of the level of flagrant police

action Franks is designed to prevent . . .”).

       With respect to the alleged falsification of the agents’

conversation with Cameron, we conclude that Patterson has failed to

proffer competent evidence showing that the recorded statements

were even false. Franks makes clear that conclusory allegations of

unlawful         official         misconduct         are     insufficient;      rather,

“[a]ffidavits        of     sworn    or   otherwise         reliable   statements    of

witnesses should be furnished, or their absence satisfactorily

explained.”        Id. at 171.       Although counsel purported to supply the

evidentiary basis for this claim, counsel’s affidavit was without

personal knowledge of the events transpiring at the third search

and bereft of probative evidence other than hearsay statements.

Significantly,        Patterson       never     gave       any   explanation    to   the

magistrate court or the district court as to why he could not

obtain an affidavit from Cameron on his motion for a Franks

hearing.2        Thus, in the absence of competent evidence in support of


       2
      Although Patterson eventually submitted individual affidavits
from Cameron and Thomas before the district court, he again offered
no explanation for why he could not have presented them earlier.

                                           10
this claim, we cannot conclude that Patterson met his heavy burden

under Franks.   Accordingly, we find that Patterson did not satisfy

Franks’s   subjective   requirement   with   regard   to   any   of   the

challenged portions of the warrant affidavit.

     We further agree with the district court that, after setting

aside the alleged false statements and adding the disposition of

the criminal charges related to the first search, the warrant

affidavit still contained information that amply supported the

probable cause determination.     See Franks, 438 U.S. at 171-72

(“[I]f, when material that is the subject of the alleged falsity or

reckless disregard is set to one side, there remains sufficient

content in the warrant affidavit to support a finding of probable



For the first time on appeal, Patterson asserts that Cameron lived
over an hour from counsel’s office, to the extent that only a
telephone interview was feasible at the time the motion was filed.
Patterson still has not explained why he was unable to procure
Thomas’s affidavit.
     We thus perceive no abuse of discretion in the district
court’s implicit decision to disregard the affidavits newly
submitted by Cameron and Thomas in adopting the M&R, particularly
since Patterson did not explain the absence of these affidavits to
the district court. See Doe v. Chao, 306 F.3d 170, 193 (4th Cir.
2002) (finding no abuse of discretion where the district court
refused to accept claimants’ supplemental affidavits on damages
issue after the magistrate judge’s recommendation, where the
claimants took the calculated risk of an evidentiary insufficiency
by refusing to submit damages evidence before the magistrate
judge); see also 28 U.S.C. § 636 (b)(1) (the district court “shall
make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection
is made,” but “may also receive further evidence” (emphasis
added)). The oversight is particularly disturbing because Franks
specifically put Patterson on notice of the heavy evidentiary
burden he faced in requesting the hearing. See infra, note 1.

                                 11
cause, no hearing is required.”).                Probable cause generally exists

“‘where the known facts and circumstances are sufficient to warrant

a man of reasonable prudence in the belief that contraband or

evidence of a crime will be found.’”                  United States v. Hodge, 354

F.3d 305, 309 (4th Cir. 2004) (quoting Ornelas v. United States,

517 U.S. 690, 696 (1996)); Illinois v. Gates, 462 U.S. 213, 243

n.13       (1983)    (probable    cause   “requires      only   a   probability    or

substantial chance of criminal activity, not an actual showing of

such activity.”).          According to the warrant affidavit, the agents

detected a strong odor of marijuana emanating from Patterson’s

residence.          Upon their arrival, Patterson peered through the storm

door, removed an unknown object from his jacket, and placed it in

the cabinet.           After conducting separate field interviews with

Cameron and Thomas, who had voluntarily stepped outside Patterson’s

residence, the agents conducted a consensual search of Thomas’s

vehicle, which contained a small amount of marijuana.                     In light of

the fact that Patterson never submitted an affidavit challenging

these facts or his detention, we conclude that the above-recited

facts support the probable cause determination underlying the third

warrant.3

       Accordingly,        we    conclude    that      Patterson    has   failed   to

establish      either     the    subjective      or   objective     requirements   of


       3
      In addition, we note that because the officers had probable
cause to search for marijuana in Patterson’s residence, the
firearms were subject to inevitable discovery.

                                            12
Franks.   For these reasons, we affirm the denial of Patterson’s

motion for a Franks hearing.



                                   B.

     Patterson next appeals the district court’s denial of his

motion to suppress evidence seized pursuant to the third warrant.

Specifically, Patterson asserts that the third warrant is invalid

because it referenced the second warrant, which, according to him,

was issued without probable cause.       He therefore claims that any

evidence seized under the third warrant must be suppressed as fruit

of the poisonous tree.      The district court denied the motion to

suppress after concluding that the second warrant was issued with

probable cause and that, therefore, the second warrant did not

taint the third warrant.

     In examining the district court’s denial of Patterson’s motion

to suppress, we “review [] questions of law de novo and findings of

[historical]   fact   and   reasonable   inferences   drawn   from   those

findings for clear error.”     United States v. Holmes, 376 F.3d 270,

273 (4th Cir. 2004) (alterations in original and internal quotation

marks and citations omitted); United States v. Perkins, 363 F.3d

317, 320 (4th Cir. 2004).      Because the district court denied the

motion, we construe the evidence in the light most favorable to the

Government.    Perkins, 363 F.3d at 320.




                                   13
     Although we conclude that the denial of the motion to suppress

was appropriate, we need not reach the validity of the second

warrant.4   It is generally accepted that “the inclusion of certain

illegally obtained information in the application for a search

warrant does not require suppression of the evidence seized under

the warrant (‘fruit of the poisonous tree’) if, excluding the

illegally obtained information, probable cause for the issuance of

the warrant could still be found.”       United States v. Apple, 915

F.2d 899, 910 (4th Cir. 1990); United States v. Whitehorn, 813 F.2d

646, 649 (4th Cir. 1987) (search warrant’s references to unlawful

bomb sweep and Uzi submachine gun discovered during a previous

search did not render the warrant invalid where it was otherwise

supported by probable cause).     As discussed above, the warrant

affidavit supporting the third warrant attested that the agents

detected a strong odor of marijuana coming from inside Patterson’s

residence, Patterson placed an unknown object in the cabinet upon

their arrival, and a consensual search of Thomas’s vehicle revealed

a small amount of marijuana.          Thus, even after excising the

references to the second warrant, we nevertheless find probable

cause in the remaining facts contained in the third warrant.




     4
      Indeed, although certain portions of the warrant affidavit
supporting the second warrant could have been ripe for cross-
examination, Patterson did not submit an affidavit contesting those
facts.

                                 14
Accordingly, we affirm the denial of Patterson’s motion to suppress

the evidence seized pursuant to the third warrant.



                               III.

     The district court’s denial of Patterson’s motion for a Franks

hearing and motion to suppress the contents of the third search is

therefore affirmed.

                                                          AFFIRMED




                                15
