                       NOT RECOMMENDED FOR PUBLICATION
                                     File Name: 15a0146n.06
                                           No. 14-5521
                          UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                FILED
                                                                                 Feb 25, 2015
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                           )

                                                    )
        Plaintiff–Appellee,
                                                    )
                                                        ON APPEAL FROM THE UNITED
v.                                                  )   STATES DISTRICT COURT FOR THE
                                                        WESTERN DISTRICT OF TENNESEE
TOMMY HOLMES,                                       )

        Defendant–Appellant.                        )

                                                    )

                                                    )
Before: BOGGS, ROGERS, and STRANCH, Circuit Judges.
                                                    )
     BOGGS, Circuit Judge. Defendant-Appellant Tommy Holmes appeals the district court’s
                                                    )
denial of his motion to suppress incriminating evidence found in his apartment. Holmes is a

convicted sex offender under lifetime community supervision who violated Tennessee law when

he failed to report to appropriate authorities following his release from prison. After obtaining a

warrant to arrest him for failing to report, police arrested Holmes at the apartment that he shared

with his wife. The arresting officers immediately asked for and obtained consent from Holmes’s

wife to search the apartment, where they found a handgun. Holmes was charged with and

convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and was

sentenced to 115 months in prison.

     The arrest-warrant affidavit stated that Holmes’s reporting deadline was “on or about

November 17, 2011,” but the actual deadline was December 1, 2011. Holmes filed a motion to


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suppress, arguing that this two-week discrepancy was a false statement that invalidated the arrest

warrant, and the taint of his unlawful arrest required suppression of evidence found in the

subsequent search of his apartment. The district court denied his motion to suppress, and

Holmes challenges that denial in his appeal from his conviction. We affirm.

                                    I.      BACKGROUND

   On February 24, 2013, the Memphis Police Department received an anonymous tip through

its CyberWatch website that Tommy Holmes “has been brandeshing [sic] a pistol and trying to

intimidate residents at the Timber Pines Apt.” The tipster also noted that Holmes claimed to be a

convicted sex offender and likely resided in an apartment registered to his wife, Sheila Holmes.

Ibid.

   Detective Brandon Evans called Agent McDavis of the Tennessee Department of Corrections

(“TDC”) to ask whether Holmes was on probation or parole. McDavis searched the Tennessee

Offender Management Information System (“TOMIS”) and found that Holmes was under

community supervision as a sex offender and was required to report regularly to the Programmed

Supervision Unit (“PSU”). McDavis contacted PSU manager Joe Williams, who discovered that

Holmes had never reported to the PSU in the 15-month period following his release from prison

in November 2011.

   Williams directed TDC probation officer Maryetta Rudd to prepare an affidavit to support an

arrest warrant for Holmes’s failure to report. Rudd drafted the affidavit, which stated that:

        Mr. Holmes is classified as a violent Sex Offender and therefore is required by
        State Law to report to Tennessee Department of Corrections Board of Probation
        and Parole in person within 72 hours after his release from incarceration.
        [Holmes] has violated Rule#1 of his Community Supervision of Life Certificate,
        which states, “I will proceed directly to my destination and upon arrival report
        immediately to my Probation/Parole Officer or in any event no later than 72 hours
        after release.” Count #1M: On or about November 17th, 2011 Mr. Holmes failed


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       to report in person to Tennessee Department of Correction Probation and Parole
       within the allotted 72-hour period.
Affidavit of Complaint, R. 24-2 Page ID #42. In drafting the affidavit, Rudd relied on the

official judgment from Holmes’s rape conviction to estimate the reporting deadline as November

17, 2011, seventy-two hours from the release date indicated on the official judgment. She was

aware of, but disregarded, TOMIS documents indicating that Holmes was still in prison as of

November 23, 2011. If she had looked further on TOMIS, she would have found a document

indicating that Holmes remained in prison until November 28, 2011, which would mean that his

reporting deadline was December 1, 2011.1 Rudd testified that she relied on the judgment order

because it was official and because TOMIS records frequently contained errors. She further

testified that she used the phrase “on or about” to qualify the reporting-deadline date because she

was uncertain as to the accuracy of the release date. In any event, at the time Rudd wrote the

affidavit, Holmes had not reported in 15 months.

    Based on Rudd’s affidavit, a judicial officer issued an arrest warrant for Holmes. Detective

Evans and another police officer visited Sheila Holmes’s address. Tommy Holmes answered the

door and told the officers that he did not live at the apartment. Report and Recommendation (“R

& R”) at 13. The officers arrested Holmes, secured him in their police car that was parked

outside, and immediately returned to the apartment to ask for Sheila Holmes’s consent to search

the apartment. Ibid. She consented to the search, and the officers found a handgun, which

Sheila Holmes said did not belong to her or her son.

    Tommy Holmes was charged with being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g). Holmes filed a motion to suppress the handgun evidence on the ground that

the two-week reporting-deadline discrepancy was a false statement that invalidated the warrant

1
 This date presumes a 72-hour deadline. Tennessee law actually requires sex offenders who are released from
prison to report within 48 hour of being released. Tenn. Code. Ann. § 40-39-203(b)(2) (2010 & Supp. 2013).

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and made his arrest unlawful, and that the unlawful arrest tainted any evidence found during the

subsequent search of his apartment. The magistrate judge, after holding a suppression hearing,

recommended denying his motion. R & R at 3. The magistrate judge found that the arrest

warrant was valid because (1) the affidavit did not contain a deliberately or recklessly false

statement, and (2) the affidavit would still have provided probable cause to support an arrest

warrant even if the disputed statements were excised. Id. at 22-24. Further, the magistrate judge

found that Mrs. Holmes’s consent was sufficiently attenuated from the arrest that, even if the

arrest had been based on an invalid warrant, the evidence derived from the search should not be

suppressed. Id. at 29.

   The district court denied Holmes’s motion to suppress and adopted the magistrate judge’s

findings that the arrest was lawful because the affidavit did not contain a deliberately or

recklessly false statement, and that Mrs. Holmes’s consent to the search the apartment would

have shielded the search from the taint of an unlawful arrest. United States v. Holmes, No. 13-

20240, 2014 WL 29597, at *3 (W.D. Tenn. Jan. 3, 2014). Holmes pleaded guilty and was

sentenced to 115 months in prison. Holmes reserved the right to appeal the denial of his motion

to suppress in his plea agreement and now appeals.

                              II.     STANDARD OF REVIEW

   In the search context, we review for “clear error the district court’s finding about the truth or

falsity of statements in [an] affidavit, and about the reckless character of any falsehoods.”

United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002). If there are deliberate or reckless

falsehoods, we review de novo the question of whether those errors were material to the warrant.

Ibid. Evidence is considered in the light most favorable to the Government. United States v.

Beauchamp, 659 F.3d 560, 565-66 (6th Cir. 2011). “While we review the determination of the



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ultimate question of whether there was consent de novo, we must afford due weight to the factual

inferences and credibility determinations made by the district court.” Id. at 566.

                                       III.   DISCUSSION

   Under Franks v. Delaware, 438 U.S. 154 (1978), “a search based on a warrant that contains

deliberately or recklessly false allegations is invalid unless the remaining portions of the affidavit

provide probable cause.” United States v. Charles, 138 F.3d 257, 263 (6th Cir. 1998). When

assessing whether to suppress evidence because of allegedly false statements in an affidavit, we

apply a two-part test: “(1) whether the defendant has proven by a preponderance of the evidence

that the affidavit contains deliberately or recklessly false statements and (2) whether the

affidavit, without the false statements, provides the requisite probable cause to sustain the

warrant.” Ibid.

   Holmes argues that the affidavit’s reporting deadline of “on or about November 17, 2011”

was a deliberately or recklessly false statement because Holmes’s actual reporting deadline was

December 1, 2011. The district court held that Holmes could not meet his burden under the first

part of the Franks test for two reasons. First, the discrepancy was not a false statement because

it fell within the permissible variance provided by the “on or about” language. Holmes, 2014

WL 29597, at *3. Second, the discrepancy was not the product of Rudd’s deliberate or reckless

conduct. Ibid.

       In the indictment context, “[w]here ‘on or about’ language is used, the government is not

required to prove the exact date, if a date reasonably near is established.” United States v.

Martin, 516 F. App’x 433, 444 (6th Cir. 2013) (quoting United States v. Nersesian, 824 F.2d

1294, 1323 (2nd Cir. 1987), cert. denied, 484 U.S. 958 (1987)). However, this is not because

qualifying an alleged date of transgression with “on or about” language makes a discrepancy



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between that date and the actual date of transgression a factually true statement. Rather, it is

because a “reasonably near date” does not amount to a material variance against the defendant.

Nersesian, 824 F.2d at 1323. See also United States v. Ford, 872 F.2d 1231, 1236 (6th Cir.

1989). In the warrant context, the proper question is therefore whether a discrepancy materially

affected the validity of the warrant.

       We need not make a materiality determination because Holmes fails to meet his burden to

show that the discrepancy was the result of Rudd’s deliberate or reckless conduct. Rudd relied

on the official judgment rather than TOMIS to estimate “November 17, 2011” as Holmes’s

reporting deadline. Holmes argues that it was reckless for Rudd to have disregarded TOMIS

documents because sentences are often recalculated after a judgment, and TOMIS provides up-

to-date sentencing information.         Appellant’s Br. at 21-24.   However, Rudd’s undisputed

testimony indicates that TOMIS also contains frequent errors. Therefore, it was not obviously

unreasonable for her to rely on an official judgment rather than TOMIS. Further, while the

affidavit contained a two-week reporting-deadline discrepancy, that discrepancy was minor in

light of Holmes’s 15-month failure to report. Because affidavits are typically drafted by non-

lawyers in the midst of a time-sensitive investigation, “[m]inor discrepancies in the affidavit may

reflect mere inadvertence or negligence, rather than the reckless falsehood that is required for

exclusion.” Elkins, 300 F.3d at 649.

       We review the district court’s decision as to whether an affidavit contains a deliberately

or recklessly false statement under a clear-error standard. If the district court chooses one of

several permissible views of the evidence, its conclusion is not clearly erroneous. United States

v. Worley, 193 F.3d 380, 384 (6th Cir. 1999).           Because the two-week reporting-deadline

discrepancy is minor in comparison to Holmes’s 15-month failure to report, and in light of



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TOMIS’s vulnerability to error, the evidence permits a conclusion that Rudd did not deliberately

or recklessly disregard the truth in relying on the official judgment to estimate Holmes’s

reporting deadline. Having concluded that Holmes fails to meet his burden under the first part of

the Franks test, we need not consider the second part of the test to affirm the district court’s

judgment that Holmes was arrested pursuant to a valid warrant.

                                    IV.    CONCLUSION

   Accordingly, we AFFIRM the judgment of the district court, and uphold its denial of

Holmes’s motion to suppress.




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