                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 12, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                        No. 05-4167
 v.
                                                 (D.C. No. 2:04-CR -117-TS)
                                                         (D. Utah)
 SEA G RUM B ER NA RD FO RD ,

          Defendant - Appellant.



                              OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Seagrum Bernard Ford appeals his conviction for three counts of

distribution of cocaine base and one count of possession with intent to distribute

cocaine base, all in violation of 21 U.S.C. § 841(a)(1), and one count of unlawful

possession of a firearm by a person who is addicted to a controlled substance in

violation of 18 U .S.C . § 922(g)(3), pursuant to a conditional guilty plea. On

appeal, he argues that the district court erred by denying his request for a




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Franks hearing, and by denying his motion to suppress evidence. Because we

hold that a Franks hearing was not necessary, and that probable cause existed to

justify the search warrant, we A FFIRM .

      In February 2004, a confidential informant introduced Sandy Police

Detective M ichael Ikemiyashiro, a five-year veteran of the police department

currently assigned to the Salt Lake A rea Gang Project unit, to Seagram Bernard

Ford. Detective Ikemiyashiro was interested in meeting Ford because of his

suspected membership in the “Original Sw amp C ompton Crips,” a violent

criminal street gang primarily based in Los Angeles County, California.

Following their initial introduction, Detective Ikemiyashiro purchased cocaine

base from Ford on three separate occasions. In total, Ford sold Detective

Ikemiyashiro approximately 15 grams of cocaine base.

      Once Detective Ikemiyashiro began purchasing drugs from Ford, the Sandy

Police Department placed Ford under constant surveillance in the hopes of finding

his “stash house.” Although they were unsuccessful in locating the stash house,

the police uncovered a number of connections linking Ford to Suliana Heimuli

and her residence. H eimuli, they learned, was Ford’s girlfriend, and, on two

separate occasions, Ford was identified as driving cars registered in her name.

Ford was also living in Heimuli’s house.




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      On February 20, 2004, approximately two weeks after their initial

introduction, Detective Ikemiyashiro met Ford in a Low e’s Home Improvement

store parking lot located in M urray, Utah, to purchase cocaine base. Ford did not

arrive alone. Accompanying him were Heimuli, Anthony Glenn Johnson, Jr., and

Juan Alberto Serrantos. After completing the transaction, Detective Ikemiyashiro

asked Ford whether he could purchase additional cocaine. Ford responded that he

could not do so immediately, but agreed to meet Detective Ikemiyashiro later that

day to sell him more cocaine.

      That afternoon, Ford spoke with Detective Ikemiyashiro briefly by

telephone. They agreed to meet in a Taco Bell parking lot in W est Valley City,

Utah, at which time Ford indicated he would have the drugs Detective

Ikemiyashiro requested. Surveillance showed that after leaving the Lowe’s

parking lot, the only stops Ford made were at the Salt Lake City International

Airport, a gas station, and Heimuli’s residence – which w as his final stop before

he arrived at the pre-arranged Taco Bell. W hen Ford, who was now accompanied

by only Johnson and Serrantos, arrived at Taco Bell, police officers stopped his

vehicle. Ford, Johnson, and Serrantos were then immediately arrested. During a

routine inventory search, the police found one ounce of cocaine base concealed in

Ford’s “buttocks.”

      Detective Ikemiyashiro then sought a search warrant for Heimuli’s

residence – in which Ford was living – for Heimuli herself, for anyone found at

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the residence at the time of the search, and for the two vehicles that police

observed Ford use to complete his drug deliveries. On the basis of an affidavit

prepared by Detective Ikemiyashiro, the state judge issued a nighttime, no-knock

warrant for the persons and properties requested. As the police searched

Heimuli’s residence on execution of the warrant, they found a loaded Glock .45-

caliber pistol under Ford’s mattress, approximately 56.9 grams of cocaine base,

and $2,080 in cash, $300 of which was the money Detective Ikemiyashiro used to

purchase cocaine base earlier in the day.

      Following the search, Ford was indicted on three counts of distribution of

cocaine base and one count of possession with intent to distribute cocaine base,

all in violation of 21 U.S.C. § 841(a)(1), and one count of unlawful possession of

a firearm in violation of 18 U.S.C. § 922(g)(3). Prior to trial, Ford filed a motion

to suppress the evidence discovered as a result of the warrant because the

affidavit used to procure the warrant contained false or reckless misstatements

thus entitling him to a Franks hearing. In the alternative, Ford argued that the

affidavit on its face failed to support a finding of probable cause. The district

court denied his request for a Franks hearing, and denied his motion to dismiss.

Ford filed a timely appeal.

      In reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous. United States v.

Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). The ultimate determination of

                                         -4-
reasonableness under the Fourth Amendment, however, is a question of law which

we review de novo. Id.

      First, Ford argues that his Fourth A mendment rights were violated because

the district court denied his request to hold a Franks hearing. In Franks v.

Delaware, 438 U.S. 154, 155-56 (1978), the Supreme Court held that, in limited

circumstances, a defendant is entitled to an evidentiary hearing to determine

whether the w arrant was issued in reliance on a deliberately or recklessly false

affidavit. In order to justify a Franks hearing, the defendant must first establish

by a preponderance of the evidence that officers intentionally or with reckless

disregard for the truth omitted material information from, or included false

information in, the affidavit. United States v. Tisdale, 248 F.3d 964, 973 (10th

Cir. 2001). A defendant cannot rely on conclusory statements, but rather must

support his position with “affidavits or sworn or otherwise reliable statements of

witnesses . . . or [in the case that such cannot be provided] their absence [must

be] satisfactorily explained.” Franks, 438 U.S. at 171. If a defendant meets this

burden, we review the affidavit as if the omitted information had been included

(or, conversely, as if the erroneous information had not been included) and then

determine whether the affidavit, thus construed, meets probable cause standards.

Id.

      The affidavit supporting the warrant application did not include a statement

by Ford to Detective Ikemiyashiro that Ford’s “guy or dealer was around and that

                                         -5-
they could all meet at the Taco Bell to complete the ounce transaction they had

agreed on earlier in the day.” Ford argues that omission of this statement creates

the false impression that he picked up the drugs from Heimuli’s residence.

However, Ford has not presented any evidence that Detective Ikemiyashiro

omitted the statement intentionally or w ith reckless disregard for the truth.

Tisdale, 248 F.3d at 973. As such, he is not entitled to a Franks hearing.

      Further, even if the statement was included, the affidavit, so construed,

contained sufficient evidence to establish probable cause. Probable cause exists

when the issuing judge has a substantial basis for concluding that “given all the

circumstances set forth in the affidavit before [the issuing magistrate or judge],

including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983)

(internal citations omitted); see also United States v. Kennedy, 131 F.3d 1371,

1378 (10th Cir. 1997) (internal citation omitted). W hen police seek a warrant to

search the home of an individual suspected of drug-related crimes, we have

required that a sufficient nexus exist between the defendant’s drug activities and

his home to support a finding of probable cause. United States v. Lalor, 996 F.2d

1578, 1582-83 (10th Cir. 1993).

      The affidavit contained the following uncontested facts: (1) Detective

Ikemiyashiro had participated in three separate drug transactions with Ford over a

                                         -6-
two-week period; (2) Heimuli was Ford’s girlfriend during the relevant time

period; (3) Ford’s driver’s license listed Heimuli’s home address as his personal

address; (4) Ford lived in Heimuli’s residence and used her cars to make drug

transactions during the relevant time period; (5) Johnson also slept at Heimuli’s

residence for three weeks prior to the date the warrant was issued; (6) on the day

of Ford’s arrest, Ford told Detective Ikemiyashiro that he needed more drug base

before he would be able to sell him the additional cocaine; (7) Heimuli’s home

was Ford’s last stop before he arrived at the predetermined Taco Bell to meet

Detective Ikemiyashiro; and (8) after Johnson was arrested, Johnson told police

that Ford stored a pistol under a mattress in Heimuli’s residence.

      None of the facts establishing the nexus between Ford’s drug-related

activity and the property identified in the search warrant are contradicted by

Ford’s statement that he was obtaining the drugs from his dealer. Further, they

overwhelmingly give rise to a finding of probable cause.

      Accordingly, we A FFIR M the district court’s denial of Ford’s request for a

Franks hearing, and A FFIR M the district court’s denial of Ford’s m otion to

suppress.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge



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