                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-2998
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                               DANTE KELEEK DARBY,
                                        Appellant
                                   _____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          District Court No. 1-14-cr-00123-001
                     District Judge: The Honorable John E. Jones, III
                                      _____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 6, 2017

       Before: SMITH, Chief Judge, HARDIMAN and KRAUSE, Circuit Judges

                             (Opinion Filed: March 30, 2017)

                                    ________________

                                        OPINION*
                                    ________________




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SMITH, Chief Judge.

       Defendant Dante Keleek Darby claims that law enforcement officers, in seeking

an arrest warrant, knowingly or recklessly omitted material information from three

affidavits of probable cause. Darby sought a hearing pursuant to Franks v. Delaware, 438

U.S. 154 (1978). The District Court denied a Franks hearing as to two of the affidavits.

As to the third, the District Court granted a limited hearing and, based on the testimony

presented, concluded that no Fourth Amendment violation occurred. Darby timely

appeals those rulings.1 For the following reasons, we will affirm.

                                              I

       Darby was arrested on October 9, 2013 after participating in four monitored drug

transactions in which he sold cocaine hydrochloride to a confidential informant (“CI”).

Law enforcement officers filed separate affidavits of probable cause describing each

transaction. Darby requested a Franks hearing as to three: the affidavits dated November

4, 2013 (for a transaction that occurred on September 5, 2012), October 9, 2013 (for a

transaction that occurred on March 7, 2013), and October 22, 2013 (for a transaction that

occurred on August 16, 2013).2 According to Darby, material omissions in those

affidavits render his arrest unlawful, and the fruits of that arrest must be suppressed.



       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
       2
        A fourth affidavit, also dated October 22, 2013 (for a transaction that occurred on
October 9, 2013), is not relevant to this appeal.
                                              2
       Darby alleges that the affidavits dated October 22 and November 4 omitted

various details about the transactions, such as their times and locations, the method by

which they were arranged, any information about the CI’s reliability, and the fact that the

evidence of the transaction came from CI hearsay. The District Court denied a Franks

hearing as to both affidavits on the ground that they were sworn out after Darby was

arrested on October 9, 2013, and thus could not have been material to the Magistrate

Judge’s probable cause determination.

       As to the affidavit dated October 9, Darby alleged that the affidavit omitted similar

details, and also that it was contradicted by an affidavit prepared by the same detective,

Detective North, for the arrest of a different suspect, David Ledesma. The October 9

affidavit described Darby selling drugs. But the Ledesma affidavit described Darby

buying drugs on that same date. The District Court granted a limited Franks hearing to

address the possible contradiction. At the hearing, the testimony of Detective North

revealed that the two affidavits could be reconciled: Darby acted as a middleman who

bought drugs from Ledesma and then sold those drugs to the CI. The District Court held

that the omission of that information from the October 9 affidavit was immaterial, and

thus not grounds for suppression. The District Court also rejected Darby’s argument that

the affidavit omitted certain details about the transaction.




                                              3
                                             III

       We agree with the District Court that (A) it was proper to deny a Franks hearing

as to the October 22 and November 4 affidavits, and (B) no Fourth Amendment violation

occurred as to the October 9 affidavit.

                                             A

       We begin with the District Court’s decision to deny a Franks hearing regarding

the affidavits dated October 22 and November 4. We have not yet established the

standard of review applicable to the denial of a Franks hearing, but we need not do so

today. See United States v. Pavulak, 700 F.3d 651, 665 (3d Cir. 2012) (noting a circuit

split).3 Under any standard of review, the District Court correctly denied Darby’s request

for a Franks hearing as to those two affidavits.

       Under Franks v. Delaware, 438 U.S. at 155–56, the fruits of a search or arrest

warrant are subject to suppression if, after a hearing, a defendant establishes by a

preponderance of the evidence that: (1) a supporting affidavit contained a false statement

(or omission) made knowingly or with reckless disregard for the truth; and (2) the false


       3
        The majority of circuits apply a mixed standard, reviewing legal conclusions de
novo and factual findings for clear error. See, e.g., United States v. Christie, 825 F.3d
1048, 1069 (9th Cir. 2016); United States v. Hancock, 844 F.3d 702, 707–08 (7th Cir.
2016); United States v. Pirosko, 787 F.3d 358, 369 (6th Cir. 2015); United States v. Allen,
631 F.3d 164, 171 (4th Cir. 2011); United States v. Thomas, 627 F.3d 146, 159 (5th Cir.
2010). Two circuits review for abuse of discretion. See, e.g., United States v. Shockley,
816 F.3d 1058, 1061 (8th Cir. 2016); United States v. Barsoum, 763 F.3d 1321, 1328
(11th Cir. 2014). One circuit reviews for clear error. See, e.g., United States v. Graf, 784
F.3d 1, 6 (1st Cir. 2015). Two circuits, in addition to this circuit, continue to reserve the
question. See, e.g., United States v. Williams, 827 F.3d 1134, 1146 (D.C. Cir. 2016);
United States v. Rajaratnam, 719 F.3d 139, 156 n.19 (2d Cir. 2013).
                                             4
statement was material to the probable cause determination. See United States v. Yusuf,

461 F.3d 374, 383 (3d Cir. 2006). A district court is required to hold a Franks hearing if a

defendant makes a “substantial preliminary showing” as to each prong. Id. (quoting

Franks, 438 U.S. at 170).

       The District Court correctly held that Darby failed to make that showing as to both

affidavits in question. The affidavits were sworn out on October 22, 2013 and November

4, 2013—both after Darby’s arrest on October 9, 2013. The Magistrate Judge thus did not

see or consider those affidavits in determining the existence of probable cause.

Accordingly, Darby failed to make a substantial preliminary showing that any statement

or omission in the affidavit was “material to the finding of probable cause.” Id.

       Despite the District Court basing its decision on this chronology, Darby does not

address that issue on appeal. Instead, Darby lists several alleged omissions that he claims

undermine the affidavits’ veracity. Because the defect in chronology is dispositive, we

need not address those arguments.4 We thus conclude that the District Court properly

denied Darby’s request for a Franks hearing as to the affidavits dated October 22 and

November 4.




       4
         Nonetheless, the claimed omissions, such as details about the time and place of
the transaction, would not have been material. See Wilson v. Russo, 212 F.3d 781, 787
(3d Cir. 2000) (“All storytelling involves an element of selectivity. We cannot demand
that police officers relate the entire history of events leading up to a warrant application
with every potentially evocative detail . . . .”). We address Darby’s arguments regarding
the CI’s reliability infra.
                                             5
                                             B

       We next turn to the District Court’s decision regarding the affidavit dated October

9. The District Court granted a limited Franks hearing as to that affidavit and, based on

the testimony presented, concluded that Darby failed to demonstrate by a preponderance

of the evidence that a Fourth Amendment violation occurred. We review the District

Court’s findings of fact for clear error, including any findings as to an officer’s

knowledge or recklessness. United States v. Brown, 631 F.3d 638, 645 (3d Cir. 2011).

We review the District Court’s legal rulings de novo. See United States v. Shields, 458

F.3d 269, 276 (3d Cir. 2006); United States v. Martin, 426 F.3d 68, 74 (2d Cir. 2005). On

appeal, Darby identifies five alleged defects in the October 9 affidavit. We reject each.

       First, Darby argues that the affidavit omitted any mention that the transaction was

set up by the CI prior to contacting law enforcement. But contrary to Darby’s argument,

the affidavit does not omit that information. It states: “The CI had previously contacted

Dante Darby via telephone and ordered a quantity of cocaine.” App. 92. Darby’s first

argument is therefore meritless.

       Second, Darby argues that the affidavit omits any information concerning the

reliability of the CI. But Darby has failed to identify any facts withheld by the

Government that would tend to undermine the CI’s reliability. See Wilson v. Russo, 212

F.3d 781, 791–92 (3d Cir. 2000) (noting “three exculpatory facts” that the affiant “should

have mentioned,” but concluding that those facts were “not strong enough to undermine a

finding of probable cause”). Regardless, it is evident from the face of the affidavit that

                                             6
the CI’s statements were corroborated by other evidence, including searches of the CI’s

person before and after the transaction, and audio and video obtained through electronic

surveillance.

       Third, Darby argues that the affidavit failed to mention that Darby contacted or

bought drugs from Ledesma. But that information is inculpatory in nature. As the District

Court correctly held, including those facts would not have led the Magistrate Judge to

conclude that probable cause was lacking. The fact that Darby sold the drugs, however

obtained, was sufficient to establish a violation of the Controlled Substances Act.

       Fourth, Darby argues that the affidavit misleadingly states that the CI “was under

‘constant surveillance’ when, in truth, things were out of view for a couple of minutes.”

Appellant Br. 18. The District Court did not commit clear error when it found that

Detective North could not have made that statement with reckless or knowing disregard

for the truth. Law enforcement officers did engage in “constant surveillance” using audio

and video monitoring. App. 92. The affidavit does not state or imply that Detective North

witnessed every aspect of the transaction with his own eyes.

       Finally, Darby argues that “[t]here is no explanation that the information contained

in the affidavit came from hearsay from an informant.” Appellant Br. 18. But even if that

fact had been made explicit, a magistrate may rely on hearsay information from a CI

where the magistrate has a “substantial basis for crediting” that statement. United States

v. Stearn, 597 F.3d 540, 556 (3d Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 242



                                             7
(1983)). As described in the affidavit, the CI’s statements were corroborated by electronic

surveillance. Thus, the alleged omission was not material.

       Accordingly, the District Court did not err when it declined to suppress the fruits

of Darby’s arrest following the limited Franks hearing.

                                            III

       For the foregoing reasons, we will affirm.




                                            8
