            Case: 18-11309    Date Filed: 02/20/2019   Page: 1 of 15


                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-11309
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:17-cr-20052-DPG-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

LEE SAINT FLEUR,

                                                            Defendant-Appellant.

                         ________________________

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

                              (February 20, 2019)

Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

     Lee Saint Fleur appeals the district court’s denial of his motion to suppress,

arguing that evidence the government obtained during a search of his apartment
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does not fall under the independent source exception to the exclusionary rule.

Alternatively, Mr. Saint Fleur argues that the warrant to search his apartment—

obtained using evidence from an allegedly unconstitutional search—was invalid

because the officer’s affidavit contained material misrepresentations and

omissions. Because the search warrant derived from a lawful source that was

independent    of   any   unconstitutional    search,    and   because     the   alleged

misrepresentations and omissions were not material, we affirm.

                                          I

       On June 10, 2016, officers responded to a domestic disturbance involving

Mr. Saint Fleur and his sister, Lisa Saint Fleur, at Mr. Saint Fleur’s apartment in

Miami, Florida. According to Mr. Saint Fleur, Lisa and her three children had

been living with him for few months before he locked her out of his apartment. In

return, Lisa kicked in one of the doors, knocking over a dresser and breaking Mr.

Saint Fleur’s television. After Mr. Saint Fleur told Detective David Adlet what

happened, Detective Adlet accompanied Mr. Saint Fleur into the apartment to

observe the damage. In the bedroom, Detective Adlet saw multiple gift and credit

cards in plain view. When asked about the cards, Mr. Saint Fleur said they were

his.

       Detective Albert then left the apartment to speak to Lisa. Lisa told Detective

Adlet that Mr. Saint Fleur “does credit card fraud,” and handed Detective Adlet


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two gift cards. Lisa went on to say that Mr. Saint Fleur and his then-girlfriend

would make credit cards by sliding the cards through a small black device that was

attached to his laptop computer.         Believing that Lisa was describing a

“reader/writer”—which can be used to remove and replace track data on a gift or

credit card’s magnetic strip—Detective Adlet asked Lisa to accompany him back

into Mr. Saint Fleur’s apartment and locate the device.

      There is disagreement as to whether Mr. Saint Fleur attempted to stop

Detective Adlet and Lisa from re-entering his apartment, but either way, Lisa was

unable to locate the reader/writer. While leaving the apartment, however, Lisa

identified a plastic storage bin containing two embossing devices, which can be

used to manually stamp numbers onto gift or credit cards. At this point, Detective

Adlet returned to his patrol car and prepared a search warrant affidavit, containing

information obtained during his initial entry into the apartment with Mr. Saint

Fleur, his interview with Lisa, and his second entry into the apartment with Lisa.

A judge approved the search warrant and it was executed on the same day.


      A grand jury charged Mr. Saint Fleur with possession of ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1); possession of unauthorized

access devices—i.e., credit card account numbers—and device making equipment,

in violation of § 1029(a)(3) and § 1029(a)(4); and three counts of aggravated

identity theft, in violation of § 1028A(a)(1). Prior to trial, Mr. Saint Fleur moved

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to suppress all evidence obtained from the second entry and the execution of the

warrant, arguing that the government did not have the authority to re-enter his

apartment and that the search warrant was based on information from the illegal

second entry. Mr. Saint Fleur also argued that the warrant was otherwise invalid

because Detective Adlet’s affidavit misrepresented Lisa as a “co-tenant” and

omitted certain facts that may have reduced the veracity of Lisa’s accusation that

Mr. Saint Fleur manufactured credit cards. The district court agreed that Detective

Adlet’s second entry into Mr. Saint Fleur’s apartment violated the Fourth

Amendment, but refused to suppress the evidence because, under the independent

source doctrine, Detective Adlet’s search warrant affidavit contained enough

information gathered before the second entry to establish probable cause. The

district court also concluded that the alleged misrepresentations or omissions

concerning Lisa’s veracity were not material.


      Mr. Saint Fleur pled guilty to possessing ammunition as a felon, possessing

device making equipment, and one count of aggravated identity theft, reserving his

right to appeal the denial of his motion to suppress. The district court sentenced

him to a total of 60 months’ imprisonment.

                                        II

      We review a district court’s denial of a motion to suppress as a mixed

question of law and fact. See United States v. Delancy, 502 F.3d 1297, 1304 (11th

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Cir. 2007). We examine the district court’s findings of fact for clear error and the

application of the law to those facts de novo. See United States v. Ramirez, 476

F.3d 1231, 1235 (11th Cir. 2007).       We construe the district court’s factual

determinations in the light most favorable to the prevailing party, here, the

government. See United States v. Newsome, 475 F.3d 1221, 1223–24 (11th Cir.

2007).

                                        III


      The Fourth Amendment protects the “right of people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. To enforce this right, courts generally exclude evidence

that is obtained during or as a result of an unconstitutional search. See Murray v.

United States, 487 U.S. 533, 536 (1988); Nardone v. United States, 308 U.S. 338,

341 (1939). In the event that the government violates the Fourth Amendment by

conducting an illegal search, however, “[t]he independent source doctrine allows

admission of evidence that has been discovered by means wholly independent of

any constitutional violation.” Nix v. Williams, 467 U.S. 431, 443 (1984). The

rationale is that the exclusionary rule should not put the government in a worse

position than it would have been had the constitutional violation not occurred. See

United States v. Noriega, 676 F.3d 1252, 1260 (11th Cir. 2012).



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      In Noriega, we articulated “a two-part test” to determine whether the

independent source doctrine applies when “a government agent makes an initial

warrantless entry that arguably violates the Fourth Amendment and then relies in

part on what he saw during that entry to obtain a search warrant.” Id.


              The first thing we do is excise from the search warrant
              affidavit any information gained during the arguably
              illegal initial entry and determine whether the remaining
              information is enough to support a probable cause
              finding. If the remaining or nonexcised information is
              enough to support a probable cause finding, the second
              thing we do is determine whether the officer’s decision to
              seek the warrant was “prompted by” what he had seen
              during the arguably illegal entry. To determine whether
              an officer’s decision to seek a warrant is prompted by
              what he saw during the initial entry, courts ask whether
              the officer would have sought the warrant even if he had
              not entered. If the officer would have done so, his
              decision to seek the search warrant is supported by an
              “independent source,” and the evidence seized under the
              warrant is admissible regardless of whether the initial
              entry violated the Fourth Amendment.

Id. at 1260–61 (internal citations omitted).


      In this case, the relevant portions of Detective Adlet’s warrant affidavit were

as follows.


                    [Detective Adlet] was assigned as back-up to assist
              Officers J[.] Borrell (18-0088) and M. Santos (18-0029)
              on a domestic dispute involving both parties on scene.



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      On the scene, [Detective Adlet] spoke to the
female party Lisa St Fleur . . . who resides with her
brother, Lee St Fleur . . . , in ‘The Premises’ as co-
tenants.

       Lisa St Fleur said she and her three (3) sons ages 6,
3 and 6 months have been living in ‘The Premises’ with
her brother for two (2) months. Lisa St Fleur handed
[Detective Adlet] two (2) Visa gift credit cards . . . ,
which she said were in the apartment. Lisa St Fleur said
that her brother, Lee St Fleur makes credit cards and she
has observed him swipe credit cards in a machine that
was connected to a lap top computer inside their
apartment.

       [Detective Adlet] was taking pictures of the scene
where Lisa St Fleur had kicked the front door open to get
back in the apartment which her brother Lee St Fleur had
locked after telling her she had to move out and had
placed some of her clothes outside the door. A TV and
glass vases which were on the dresser by the door [had]
fell and the glass vases broke and glass was on the floor
around the bedroom which Lee St Fleur told [Detective
Adlet] he shares with his sister.

      [Detective Adlet] observed several credit card[s]
lying on the top of the dresser and night stand in the
bedroom and in plain view which Lee St Fleur said were
his.

       Lisa St Fleur took [Detective Adlet] to the kitchen
where several credit cards were observed on the counter
top and shelves. Lisa St Fleur then took [Detective Adlet]
into the common living room where she usually sleeps
with her kids and [Detective Adlet] observed several
credit cards on the coffee table and book stand. Lisa St
Fleur said she observed her brother with a black device
hooked up to his lap top computer which she pointed to
in the living room and swipes credit cards through the
device. Lisa St Fleur then pointed to a device on the floor

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             which she had observed her brother use to put card
             numbers on plastic cards. The device is grey and has the
             words ‘EMBOSSER’ on a dial with a hand pulling
             device commonly used to stamp credit numbers onto
             plastic credit cards.

D.E. 54-4 at 2–4.


      The district court, in ruling on Mr. Saint Fleur’s motion to suppress, applied

the two-part test from Noriega and excised the affidavit’s final paragraph related to

Detective Adlet’s second entry into Mr. Saint Fleur’s apartment. It determined that

that the affidavit still included “(1) the gift cards Detective Adlet observed in [Mr.

Saint] Fleur’s bedroom during the First Entry; (2) [Mr. Saint] Fleur’s statements to

Detective Adlet during the First Entry [that the cards were his]; (3) Lisa’s

statements [that Mr. Saint Fleur makes credit cards] to Detective Adlet outside the

Apartment before the Second Entry; and (4) the two gift cards Lisa provided to

Detective Adlet in conjunction with those statements.” D.E. 67 at 14. The district

court then concluded that those facts and circumstances established probable cause

to search Mr. Saint Fleur’s apartment.        On appeal, the parties agree that the

summarized evidence remains in Detective Adlet’s affidavit after excising the

information related to the second entry. Therefore, we must determine whether the

district court erred in concluding that such evidence, on its own, established

probable cause. See Noriega, 676 F.3d at 1260.



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      We review de novo whether a search warrant affidavit establishes probable

cause. See United States v. Mathis, 767 F.3d 1264, 1274–75 (11th Cir. 2014).

“Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999). “Fair probability” is determined by whether the

facts and circumstances would lead a reasonably prudent person to believe the

place to be searched contains evidence of a crime. Noriega, 676 F.3d at 1261.

Although we employ de novo review, “[w]e give great deference to a [district]

court judge’s determination of probable cause.” Brundidge, 170 F.3d at 1352

(alteration and internal quotation marks omitted).


       In several cases, we have concluded that the government had probable cause

to search the defendant’s property—independent from an allegedly illegal search—

after removing any evidence gained as a result of the intrusion from officer’s

warrant affidavit. For example, in United States v. Thomas, 818 F.3d 1230, 1243–

44 (11th Cir. 2016), we applied the independent source doctrine to admit evidence

that the defendant used his computer to access child pornography. We concluded

that incriminating statements by the defendant’s wife, coupled with websites left

open on the defendant’s computer, established probable cause apart from a

subsequent forensic scan of the computer. See id. Similarly, in United States v.

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Maxi, 886 F.3d 1318, 1330 (11th Cir. 2018), we assumed that a protective sweep

and walk-through of the defendant’s home was unconstitutional, but admitted

evidence seized pursuant to a later warrant because, before the intrusion, the

officer observed drugs through a door that the defendant voluntarily opened. See

also United States v. Bush, 727 F.3d 1308, 1316 (11th Cir. 2013) (finding enough

information in a warrant affidavit that was independent of an allegedly

unconstitutional GPS tracking device to establish probable cause).


      As in these cases, the facts and circumstances described in Detective Adlet’s

affidavit that are independent from the second entry into Mr. Saint Fleur’s

apartment are enough to establish probable cause.         The affidavit stated that

Detective Adlet personally viewed credit and gift cards in Mr. Saint Fleur’s

apartment and that Mr. Saint Fleur admitted the cards were his. The affidavit also

included Lisa’s accusation that Mr. Saint Fleur made credit cards and engaged in

“credit card fraud,” and for support, noted that she (a) was his sister, (b) lived in

the same apartment, (c) described his process for making the credit cards, and (d)

gave the detective two credit cards. In short, Lisa provided Detective Adlet with

the basis for her knowledge, facts to corroborate her accusation, and physical

evidence of the crime. In our view, this information would lead a reasonably

prudent person to believe that Mr. Saint Fleur’s apartment contained evidence of a

crime. See Noriega, 676 F.3d at 1261.

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      The second step of the independent source analysis asks whether the

officer’s decision to seek a search warrant was “prompted by” what was observed

during the impermissible search. See Noriega, 676 F.3d at 1260–61. We review

the district court’s conclusion that Detective Adlet would have sought a search

warrant, even if he had not re-entered Mr. Saint Fleur’s apartment, for clear error,

see Ramirez, 476 F.3d at 1235, and we construe the facts in the light most

favorable to the government, see Newsome, 475 F.3d at 1223–24.


      Detective Adlet testified multiple times during the suppression hearing that

he would have sought a warrant whether he re-entered Mr. Saint Fleur’s apartment

or not. See Thomas, 818 F.3d 1230, 1244 (noting the officer’s testimony at the

suppression hearing to conclude that the government met the second step of the

independent source analysis).     Detective Adlet also testified that, before Lisa

pointed out the embosser during the second entry, he told her that they already had

enough evidence to obtain a search warrant.


      To combat this testimony, Mr. Saint Fleur argues that the fact that Detective

Adlet felt the need to re-enter his apartment suggests that he would not have sought

a warrant absent the second entry. Given the appropriate standard of review, this

argument is unpersuasive.       If we accepted that a subsequent search itself

establishes that the officer would not have sought a warrant, every case where a


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legal search was followed by an illegal search would fail the second step of the

independent source analysis. Our caselaw does not support such a rule. See Maxi,

886 F.3d at 1330 (finding that the officer would have sought a warrant despite a

subsequent search); Thomas, 818 F.3d at 1243–44 (same).


      We conclude that the district court did not clearly err in finding that

Detective Adlet would have sought a search warrant, even if he had not re-entered

Mr. Saint Fleur’s apartment. Therefore, it properly applied the independent source

doctrine.


                                          IV

      Mr. Saint Fleur also argues that, even if Detective Adlet’s affidavit

established probable cause, the warrant was invalid because the affidavit

misrepresented Lisa as a “co-tenant” and omitted facts about her role in the

domestic disturbance that may have reduced her veracity.           The district court

rejected this argument, concluding that any misrepresentations were not material

and that the affidavit did contain information related to Lisa’s actions during the

domestic disturbance. We review this conclusion for an abuse of discretion. See

United States v. Votrobek, 847 F.3d 1335, 1342 (11th Cir. 2017).


      An officer is not required to include “every shred of known information . . .

in a warrant affidavit, [and] the omission of a particular detail, without more, is not

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enough” to invalidate a warrant. United States v. Barbosa, 896 F.3d 60, 68 (1st

Cir. 2018) (citing United States v. Colkley, 899 F.2d 297, 300–01 (4th Cir. 1990)).

Stated another way, “[i]nsignificant and immaterial misrepresentations or

omissions will not invalidate a warrant.” United States v. Ofshe, 817 F.2d 1508,

1513 (11th Cir. 1987).


      In Franks v. Delaware, 438 U.S. 154, 171 (1978), the Supreme Court said

that “there is . . . a presumption of validity with respect to [an] affidavit supporting

[a] search warrant.” The Court, however, held that a defendant may invalidate a

search warrant by making a substantial showing that (1) a warrant affiant made

intentionally false or recklessly misleading statements or omissions; and (2) those

statements, or omissions, were necessary to the determination of probable cause.

See id. at 155–56. Alleging that the officer negligently misstated or omitted

particular facts is not enough. See id. at 171. The defendant’s attack on the

affidavit must be “more than conclusory,” id., and even intentional or reckless

omissions will only invalidate a warrant “if inclusion of the omitted facts would

have prevented a finding of probable cause.” Madiwale v. Savaiko, 117 F.3d 1321,

1327 (11th Cir. 1997).




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      Here, the district court did not abuse its discretion in refusing to invalidate

the search warrant. See Mathis, 767 F.3d at 1275; United States v. Barsoum, 763

F.3d 1321, 1329 (11th Cir. 2014).


      First, the district court did not err when it determined that information

omitted from the affidavit, such as other accusations Lisa made about Mr. Saint

Fleur and his then-girlfriend and the fact that Lisa’s written statement to police

differed from her verbal statements to Detective Adlet, were not material. Cf.

Ofshe, 817 F.2d at 1513 (concluding that a search warrant was valid although the

warrant application did not mention the informant’s criminal record or that he was

in custody).     Mr. Saint Fleur has not shown that the warrant affidavit was

intentionally or recklessly misleading by omitting Lisa’s other accusations or facts

about her written statement. See Barsoum, 763 F.3d at 1329. Nor has he shown

that the omitted information was necessary to determine probable cause. See

Franks, 438 U.S. at 155–56.


      Second, the affidavit’s statement that Lisa and Mr. Saint Fleur were “co-

tenants” does not invalidate the warrant. Although co-tenancy versus temporary

residence would be a meaningful distinction in determining whether Lisa could

consent to a search, or in illuminating other Fourth Amendment issues, see

Georgia v. Randolph, 547 U.S. 103, 114 (2006), noting Lisa’s residence in the


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affidavit merely established the basis for her knowledge that Mr. Saint Fleur made

credit cards in his apartment. So, the fact that the affidavit described Lisa as a co-

tenant, as opposed to a temporary resident, was not necessary to determine

probable cause. See Franks, 438 U.S. at 155–56. See also Mathis, 767 F.3d at

1275.


        Third, the fact the affidavit did not include a full description of the domestic

disturbance does not invalidate the warrant. We agree with the district court that

the affidavit “provide[d] information relating to Lisa’s credibility, specifically that

she was involved in a domestic dispute with [Mr. Saint] Fleur; and that she had

kicked in the door to get back into the Apartment after [Mr. Saint] Fleur had

locked her out; along with a description of the damage that she did to the

Apartment.” D.E. 67 at 16. And, contrary to Mr. Saint Fleur’s argument on this

point, his brief acknowledges that “Lisa Saint Fleur’s utter unreliability as a source

is evident from the face of the search warrant affidavit itself.” Appellant’s Br. at

19. Therefore, more details were not material to evaluate Lisa’s reliability.

                                           V

        For the forgoing reasons, we affirm the district court’s denial of Mr. Saint

Fleur’s motion to suppress.

        AFFIRMED.



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