                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 26, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 12-7063
                                              (D.C. No. 6:11-CR-00083-RAW-1)
 CARL GENE BRANTLEY,                                   E.D. Oklahoma

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we

grant the parties’ requests and order the case submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 I. INTRODUCTION

      Carl Gene Brantley entered a conditional guilty plea 1 to one count of

manufacturing 100 or more marijuana plants 2 and one count of criminal drug

forfeiture. 3 Brantley reserved the right to challenge the district court’s denial of

his motion to suppress the fruits of a warrant-based search of his residence. In

particular, the conditional plea preserved the following issue for appellate review:

“whether United States Forest Service Officer Heath Watkins made two deliberate

material misrepresentations in his Affidavit for Search Warrant.” Having

reviewed the entire record, we conclude the district court 4 did not clearly err in

finding Officer Watkins truthfully and accurately averred that (1) he observed a

horse and a headlamp in the September 20, 2010 nighttime surveillance video (the

“2010 video”); and (2) he positively identified Brantley as the person observed in

the September 22, 2011 surveillance video (the “2011 video”). Accordingly,



      1
        See Fed. R. Crim. P. 11(a)(2) (providing that with the government and
district court’s consent, “a defendant may enter a conditional plea of guilty . . . ,
reserving in writing the right to have an appellate court review an adverse
determination of a specified pretrial motion”).
      2
          See 21 U.S.C. § 841(a)(1).
      3
          See 21 U.S.C. § 853.
      4
       Pursuant to the terms of 28 U.S.C. § 636(b)(1)(B), the district court
referred Brantley’s suppression motion to a magistrate judge for initial
proceedings. Upon de novo review, the district court adopted the magistrate
judge’s findings. Thus, we treat the findings of the magistrate judge as the
findings of the district court. Id.

                                          -2-
exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the

district court’s denial of Brantley’s suppression motion.

                                 II. BACKGROUND

      Because the district court’s statement of the relevant background facts is

both clear and concise, we set it out in full: 5

             On September 28, 2011, Officer Heath Watkins, a United
      States Forestry Service Officer, sought a search warrant from the
      District Court in and for McCurtain County, Oklahoma by executing
      an Affidavit for Search Warrant. The affidavit related a detailed
      property description of the real property to be searched, identified as
      the residence of [Brantley] as well as . . . appurtenances and a cabin
      “used by Carl Gene Brantley and Dale Toon.” Officer Watkins
      testified and the affidavit reflects that in May of 2010, he and other
      officers observed a marijuana patch near Union Valley Road,
      northeast of Eagletown, Oklahoma through aerial reconnaissance by
      helicopter.

             On September 23, 2010, Officer Watkins and others went to
      the observed patches and installed a video recording system.
      Officers observed two patches with unharvested marijuana plants
      growing in each. The factual recitation of Paragraph 14 of Officer
      [Watkins’s] affidavit is challenged by [Brantley]. This paragraph
      states as follows:

             On October 6, 2010, Officers went to the patches and
             found Patch #1 had been completely harvested and Patch
             #2 had been partially harvested. The plants had been cut
             off approximately 12 inches above the ground and


      5
        Such a course is consistent with this court’s obligation to view the facts in
the manner most favorable to the government, the prevailing party below. United
States v. Villa-Chaparro, 115 F.3d 797, 800-01 (10th Cir. 1997) (“When
reviewing a district court’s denial of a motion to suppress, we consider the
totality of the circumstances and view the evidence in a light most favorable to
the government.”).

                                           -3-
      completely removed from the patches. Officers
      reviewed the recordings and on September 30, 2010,
      approximately 11:37 PM a person on horseback with a
      headlamp was recorded in the Patch #1 and the person
      was harvesting the marijuana plants. The person
      removed the entire marijuana plants from Patches #1 and
      #2. There were no identifiable images recorded of the
      suspect.

       Officer Watkins testified that he, Agent Alford, and Officer
Gary Rose, law enforcement officers with the United States Forestry
Service, all reviewed the video from September 30, 2010 frame-by-
frame on a computer. Officer Watkins stated that they all had
experience in reviewing surveillance videos. According to Officer
Watkins, all of these officers observed a person with a headlamp
which “blazed,” or cast light upon the head and neck of a horse in the
dark of night. A review of the video at the hearing revealed a flash
of light at frame 411 which Officer Watkins stated also showed a
muzzle of a horse. Later in the video at frame 840, more light is
observed which shines upon a light colored object; an object
identified by Officer Watkins as a horse. At several points in the
video between frames 947 and 950, flashes of light are also observed,
which Officer Watkins identifies as light from a headlamp.

      Officer Watkins stated he has considerable experience with
horses, outdoor marijuana cultivation investigations, and observing
surveillance videos. He does, however, admit that the statement
provided in his affidavit that the person in the video was harvesting
the marijuana plants located in Patch #1 was an assumption based
upon his later observation that the plants were harvested as it is
impossible to discern what the person in the video is actually doing.

       The affidavit relates law enforcement’s subsequent activity
with regard to these and other marijuana patches in the same general
vicinity. At Paragraph 16 of the affidavit, Officer Watkins states that
[thereafter] unmanned surveillance cameras were installed in Patch
#1, #2, and a third discovered patch referenced as Patch #3. The
later recovered videos from these cameras revealed activity from
August 24, 2011 at approximately 8:30 a.m. The video depicts a man
wearing a t-shirt and cargo pants with a cap and blue bandana. The
man used a wooden digging tool to strike the ground. In another

                                  -4-
video, the man appears to drop seeds from a plastic baggie and
moved his feet as if to move soil.

        Officer Watkins testified that he saw [Brantley] to be the man
in the video. He also asked the opinion of two other officers who
stated they believed the man in the video was [Brantley]. Officer
Watkins identified the man in the video as [Brantley] in the affidavit
for search warrant. Officer Watkins showed a confidential informant
a still photograph from the video and the informant identified the
man in the video as [Brantley].

       Officer Watkins also obtained a photograph of [Brantley] from
a prior incarceration in 2007. He ascertained that [Brantley] was the
person in the video.

       [Brantley] also challenges the accuracy of Officer [Watkins’s]
statements at Paragraph 19 of his affidavit. This paragraph sets out
the following:

      On September 22, 2011, WATKINS saw CARL
      BRANTLEY near Eagletown, Oklahoma and positively
      identified [BRANTLEY] as the person recorded
      cultivating marijuana in Patch #1 on August 24, 2011.

       On September 22, 2011, Officer Watkins met with the
confidential informant who told Officer Watkins that he knew where
[Brantley] lived. On the way to [Brantley’s] residence and while
stopped at an intersection, Officer Watkins saw a vehicle driven by a
person who Officer Watkins identified on sight as [Brantley].
Officer Watkins identified [Brantley] from his facial structure and
ball cap from viewing the video, the still frame photograph from the
video, and the 2007 jail photograph of [Brantley]. Additionally, the
confidential informant confirmed that the person was [Brantley].

       As reflected in Paragraphs 20 and 21 of Officer [Watkins’s]
affidavit, on September 27, 2011, law enforcement observed that the
marijuana plants from Patch #3 had been harvested and the plants
were cut off approximately 12 inches from the ground. Officers also
noted shod horse tracks were visible on the ground. A review of the
video from the surveillance cameras revealed a person harvesting the
plants. Additionally, Officer Rose recovered a strand of blue

                                  -5-
      tarpaulin material and length of nylon rope at the scene of Patch #3.
      Officers followed the shod horse tracks from Patch #3 to a cabin
      located approximately 1/4 to ½ miles from the patch. While the
      cabin was owned by an individual identified as Dale Toon, Officers
      were aware that the cabin was used by [Brantley] because Mr. Toon
      and [Brantley] were business partners. Officers followed the shod
      horse tracks to the road where they stopped, indicating to law
      enforcement that the horse was loaded on a trailer. Officers also
      observed mud and snow tire impressions at the cabin.

            Officer Watkins drove past [Brantley’s] residence and
      observed a blue tarpaulin which he believed matched the material
      found at Patch #3 as well as a horse trailer consistent with the type
      which left tire impressions at the patch.

             At the time the warrant was obtained, Officer Watkins was
      also aware of a prior investigation of [Brantley] from 2001 where
      [Brantley] was found to be cultivating and harvesting marijuana
      plants in Eagletown, Oklahoma from six patches. During that
      investigation, video surveillance of [Brantley] revealed he harvested
      at night using lights, the plants were cut off 12 inches from the
      ground. Upon service of a search warrant on [Brantley’s] residence
      in that prior investigation, officers located dried marijuana leaves
      and residue in a barn.

             Based upon this information, Officer Watkins sought the
      search warrant. The warrant was signed by a state district judge.
      Upon execution at [Brantley’s] residence on September 29, 2011, law
      enforcement found several firearms, marijuana and marijuana seeds,
      a t-shirt and camouflage pants, scales, a blue tarp and a gray tarp
      covering marijuana plants and seeds, a portable spotlight which can
      be worn on a cap, a blue bandana, and a dual headed wooden handled
      tool. Officers seized a total of 17.89 kilograms of marijuana.

Report and Recommendation at 1-7 (footnotes omitted).

      After he was indicted, Brantley filed a suppression motion and requested a

Franks hearing. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978) (holding it

is a violation of the Fourth Amendment for an affiant to knowingly and

                                         -6-
intentionally, or with reckless disregard for the truth, make a false statement in a

warrant affidavit). In relevant part, Brantley asserted Officer Watkins made the

following two materially false misrepresentations in the affidavit he submitted in

support of the search warrant: (1) the assertion in paragraph 14 of the affidavit

that it was possible to observe a headlamp and a horse in the 2010 video; and (2)

the assertion in paragraph 19 of the affidavit that it was possible to positively

identify Brantley as the person observed harvesting marijuana plants in the 2011

video. After holding an evidentiary hearing, the district court concluded Brantley

failed to meet his burden of proving by a preponderance of the evidence that

Officer Watkins’s affidavit contained intentional misrepresentations. See United

States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000) (explaining the

opponent of a search warrant bears the burden of proving by a preponderance of

the evidence that the affidavit supporting the warrant contained deliberate or

reckless false information or material omissions).

                                 III. DISCUSSION

      Brantley appeals, asserting the videos in question conclusively demonstrate

Officer Watkins’s affidavit contains intentionally false material statements. Br.

for Appellant at 12 (asserting it is impossible to detect a horse or headlamp in the

2010 video because the video contains “a stream of indecipherable images,

completely devoid of any evidentiary value”); id. at 13 (asserting it is

“impossible” to identify any individual as the person seen in the 2011 video).

                                          -7-
      When reviewing the denial of a suppression motion, this court views the

record in the light most favorable to the United States. United States v. Hendrix,

664 F.3d 1334, 1337-38 (10th Cir. 2011). The district court’s factual findings are

not disturbed on appeal unless they are clearly erroneous. United States v.

Hargus, 128 F.3d 1358, 1361 (10th Cir. 1997). “It is the province of the trial

court to assess the credibility of witnesses at the suppression hearing and to

determine the weight to be given to the evidence presented, and we must give

such determinations due deference.” United States v. Le, 173 F.3d 1258, 1264

(10th Cir. 1999). A district court’s factual finding is clearly erroneous only when

this court, considering all the evidence, is “left with the definite and firm

conviction that a mistake has been made.” United States v. Beaulieu, 893 F.2d

1177, 1182 (10th Cir. 1990). “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). This is true

whether the district court’s factual findings are predicated upon assessments of

witness credibility or on a consideration of documentary evidence. Id. at 573-74.

A. The 2010 Video

      The district court rejected Brantley’s assertion that the video quality was

too poor for Officer Watkins to observe a headlamp and horse:

      [Brantley] . . . challenges the veracity of the . . . statements at
      Paragraph 14 concerning the presence of a headlamp and a horse.
      The testimony indicates that Officer Watkins and Agent Rose have

                                          -8-
      considerable experience in drug interdiction and observation of
      surveillance video. While an untrained eye might only see the horse
      indicated by Officer Watkins upon being told that it is indeed a
      horse, his prior law enforcement experience is proper to rely upon to
      support a finding of probable cause. Upon review of the video
      surveillance evidence from September 30, 2010, this Court does not
      and cannot conclude Officer Watkins intentionally mislead or
      presented false information to the state district court in issuing the
      search warrant from the statements made in Paragraph 14.

Report and Recommendation at 9-10. (citations omitted).

      Brantley asserts this court need only review the 2010 video to conclude the

district court clearly erred in finding Officer Watkins did not intentionally

misrepresent the presence of a horse and headlamp in the video. Having reviewed

the video, this court easily rejects Brantley’s assertion. Admittedly, like the

district court, we think the video, standing alone, is somewhat ambiguous. As

Officer Watkins explained at the suppression hearing, however, he is experienced

in interpreting nighttime surveillance video and has extensive experience with

horses. At the direction of the prosecutor, Officer Watkins walked the district

court through the video, correlating the video frame-by-frame with paper copies

of certain frames introduced as evidence. After playing the video for the district

court, the prosecutor attempted to stop the video, as closely as possible, on the

exact frame reflected in the paper exhibits. Officer Watkins discussed each

frame, describing the parts of the horse and reins visible on each exhibit.

Furthermore, the technology in the courtroom allowed Officer Watkins to

highlight for the court on the screen what he was observing. In light of all this

                                         -9-
evidence, the district court concluded Officer Watkins was credible and found the

affidavit did not contain an intentional misrepresentation in identifying a horse

and headlamp in the 2010 video. Having reviewed the 2010 video in light of this

record, this court concludes the district court’s findings are not clearly erroneous.

B. The 2011 Video

      The district court likewise rejected Brantley’s assertion that it was

impossible for Officer Watkins to positively identify him as the individual

observed cultivating marijuana plants in the 2011 video:

      [Brantley] contends the information provided at Paragraph 19 also
      contains false information. This Court disagrees. Officer Watkins
      testified he saw [Brantley] on September 22, 2011 and positively
      identified him as the person in the surveillance video. Based upon
      all of the safeguards taken by Officer Watkins to identify [Brantley],
      including consulting with other law enforcement officers and a
      confidential informant to confirm his identification, Officer Watkins
      did not intentionally mislead or provide false information in
      Paragraph 19 to support the issuance of a search warrant. Officer
      Watkins had considerable supporting evidence to conclude [Brantley]
      was the individual in the video, including photographic evidence and
      [Brantley’s] past involvement in marijuana cultivation and
      harvesting.

Report and Recommendation at 10-11.

      In support of his contention the district court’s findings in this regard are

clearly erroneous, Brantley simply references the district courts “failure” to

“direct[ly] comment on the amazingly poor quality of the video, or how no

reasonable person could identify anyone from it.” Br. for Appellant at 14.

Having reviewed the 2011 video, we conclude the district court did not clearly err

                                         -10-
in finding paragraph 19 of the affidavit free of intentional misrepresentation. The

2011 video consists of several clips. In the first clip, the man has a blue bandana

covering the bottom portion of this face and is wearing a camouflage ball cap, a

dark green t-shirt with a pocket, and beige cargo pants. The remaining clips show

what appears to be the same man wearing the same clothes, only without a

bandana on his face, walking toward the camera while sowing and planting seeds

from a baggie. The man’s facial features are clearly visible and in color. When

these facts are combined with Officer Watkins’s extensive efforts to corroborate

his identification of Brantley as the individual in the video, the district court had

ample evidence to conclude the challenged statements in paragraph 19 were not

the product of intentional or reckless misrepresentation. United States v. Sanchez,

725 F.3d 1243, 1247-48 (10th Cir. 2013) (holding that negligence or innocent

mistakes are insufficient to justify excisions from an affidavit under Franks); id.

(holding this court reviews for clear error not only determinations as to truth or

falsity of statements in an affidavit, but also the intentional or reckless character

of such alleged falsehoods).




                                         -11-
                               IV. CONCLUSION

      For those reasons set out above, the order of the United States District

Court for the Eastern District of Oklahoma denying suppression is hereby

affirmed.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




                                       -12-
