           Case: 12-11349    Date Filed: 11/21/2012       Page: 1 of 6

                                                                [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-11349
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:11-cr-00183-RBD-TEM-1



UNITED STATES OF AMERICA,

                                llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                    versus

CHARLES EDWARD LEACH,

                              llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                      ________________________

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

                            (November 21, 2012)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
               Case: 12-11349     Date Filed: 11/21/2012    Page: 2 of 6

      Charles Leach appeals his conviction for manufacturing marijuana, in violation

of 21 U.S.C. § 841, and conspiracy to manufacture marijuana, in violation of 21

U.S.C. § 846. On appeal, Leach argues that the district court erred in denying his

motion to suppress the evidence gathered pursuant to a search of his residence,

because the agents included deliberate falsehoods and omitted material information

in applying for the search warrant. After careful review, we affirm.

      We review whether an affidavit in support of a search warrant established

probable cause de novo and findings of historical fact for clear error. United States

v. Lopez, 649 F.3d 1222, 1245 (11th Cir. 2011). We construe all facts in the light

most favorable to the party who prevailed below. United States v. Ramirez, 476 F.3d

1231, 1235-36 (11th Cir. 2007).

      Affidavits supporting arrests warrants are presumptively valid. Franks v.

Delaware, 438 U.S. 154, 171 (1978). For a search warrant to be valid, it must be

supported by probable cause. U.S. Const. amend. IV (providing that “no Warrants

shall issue, but upon probable cause . . . particularly describing the place to be

searched . . . .”). “A sufficient basis for probable cause for a search exists when under

the totality of the circumstances there is a fair probability that contraband or evidence

of a crime will be found in a particular place.” Lopez, 649 F.3d at 1245 (quotation

and alteration omitted). In determining probable cause, a court may consider only the

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information that had been presented to the issuing judge. United States v. Lockett,

674 F.2d 843, 845 (11th Cir. 1982). Opinions and conclusions of experienced agents

regarding a set of facts are a factor in the probable cause equation. United States v.

Robinson, 62 F.3d 1325, 1331 n.9 (11th Cir. 1995).

      When considering an attack on the veracity of an affidavit filed in support of

a search warrant, the Supreme Court has held that (1) “where the defendant makes a

substantial preliminary showing that a false statement knowingly and intentionally,

or with reckless disregard for the truth, was included by the affiant in the warrant

affidavit,” and (2) “if the allegedly false statement is necessary to the finding of

probable cause, the Fourth Amendment requires that a hearing be held at the

defendant’s request.” Franks, 438 U.S. at 155-56. If, at the hearing, the defendant

establishes the allegation of perjury or reckless disregard by a preponderance of the

evidence, and “with the affidavit’s false material set to one side, the affidavit’s

remaining content is insufficient to establish probable cause, the search warrant must

be voided and the fruits of the search excluded to the same extent as if probable cause

was lacking on the face of the affidavit.” Id. at 156.

      Concerning the first Franks prong, the attack on the affidavit supporting the

warrant must contain “allegations of deliberate falsehood or of reckless disregard for

the truth,” specifically pointing out the portion of the warrant affidavit that is claimed

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to be false. Id. at 171. The allegations should be supported by an offer of proof,

including affidavits or sworn or otherwise reliable statements of witnesses;

conclusory allegations of negligence or innocent mistakes are insufficient. Id. As for

the second Franks prong, in order to be entitled to relief, a defendant must show that

the misrepresentations or omissions were material, which means that, absent the

misrepresentations or omissions, probable cause would have been lacking. United

States v. Novaton, 271 F.3d 968, 987 (11th Cir. 2001).

      In this case, the district court found two inaccuracies in the affidavit: (1) that

Leach’s landlord, Nancy Savage, requested both verbally and in writing that a

security check of the residence be performed; and (2) that upon approaching the

residence to conduct the security sweep, agents could smell the odor of raw flowering

marijuana coming from the residence. Both of these statements contained in the

affidavit were in conflict with the testimony at the suppression hearing because, first,

the evidence showed that the agents had requested consent for the security check

from Savage (and not the other way around), and second, the evidence showed that

the agents had smelled marijuana immediately upon approaching the gate to the

Leach residence. Additionally, the district court identified two omissions in the

affidavit: (1) that the agents entered the residence during the security sweep and

found marijuana; and (2) that the agents saw a marijuana plant protruding from a

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garbage bag outside the fence surrounding the residence.1 The district court did not

make any specific findings about whether the inaccuracies and omissions at issue

were made knowingly or recklessly. Rather, the district court found that the affidavit

was sufficient even with the inaccuracies removed and the omissions added.

       We agree with the district court. Indeed, with the challenged inaccuracies

removed and the omissions inserted, the affidavit reads this way:

       Upon receiving information from Drug Enforcement Administration
       Task Force Agent Daniel T. Wolfe that the suspect Charles Leach and
       his wife Kerri Leach where [sic] both observed at a local growth [sic]
       store purchasing items commonly used to grow marijuana on five
       different occasions. [sic] The subject had previously been involved in an
       indoor marijuana grow in 2007 in which Charles Leach served four
       months in Federal Prison. The Leach subjects have no rental agreement
       on the residence and are only living there to help out on the blue berry
       [sic] farm while residing there. The utility records indicate higher than
       normal usage starting on 06/23/2010 through the current date 12/1/2010.
       The agents entered the residence to conduct a security sweep during
       which they found marijuana. The agents also saw a marijuana plant
       protruding from a garbage bag outside the fence surrounding the
       residence.

Based on this version of the affidavit, Leach has not shown that, absent the

misrepresentations or omissions, probable cause would have been lacking.

       1
         The court also rejected as without merit Leach’s claim that the agents had intentionally
misled the state court judge by telling the judge that the pattern of electricity usage from June to
November 2010 demonstrated indoor growing cycles even though no one witnessed the Leaches
purchasing the indoor growing equipment until October 2010. However, this evidence does not
establish that the October date was the first time that they had purchased equipment and supplies
for growing marijuana. In any event, Leach does not challenge the finding on appeal, and it is
therefore abandoned. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

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      For starters, the issuing judge was entitled to rely on the agents’ conclusion that

the store where the Leaches were seen purchasing equipment was considered a

“growth store,” and that the items that they were purchasing were commonly used to

grow marijuana. See Robinson, 62 F.3d at 1331 n.9. Likewise, the judge was also

correct in relying on the agents’ implication that the high utility usage indicated a

marijuana grow operation. These two facts, along with the fact of Leach’s prior

conviction, which was clearly relevant, were sufficient to show a fair probability that

evidence of marijuana cultivation would be found in the Leach residence. See Lopez,

649 F.3d at 1245; see also Robinson, 62 F.3d at 1331.

      In short, because probably cause existed based on the revised version of the

affidavit, it is irrelevant whether the evidence adduced at the suppression hearing --

including the fact that Agent Wolfe could not explain why the affidavit provided that

Savage had requested the security sweep -- could indicate that the inaccurate

statements were included recklessly (the first Franks factor). Accordingly, we affirm.

      AFFIRMED.




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