                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 04a0072n.06
                                 Filed: November 5, 2004

                                            No. 03-4294

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )     ON APPEAL FROM THE UNITED
                                                )     STATES DISTRICT COURT FOR THE
HENRY CALDWELL,                                 )     NORTHERN DISTRICT OF OHIO
                                                )
                                                )
       Defendant-Appellant.                     )     OPINION
                                                )



Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Henry Caldwell entered a conditional plea of

guilty to possession of more than 50 grams of cocaine base (crack) with the intent to distribute, and

to possession of a firearm after having been convicted of a felony. Pursuant to Rule 11(a)(2) of the

Federal Rules of Criminal Procedure, Caldwell reserved the right to appeal the decision of the

district court that denied his motion to suppress the evidence.

       On appeal, Caldwell argues that (1) the affidavit supporting the search warrant did not

provide probable cause for the search, (2) the district court erred in denying him a Franks hearing

or, in the alternative, an in camera proceeding to determine the reliability of the information source,

and (3) the district court erred in applying the Leon good-faith exception to the present case. For

the reasons set forth below, we AFFIRM the judgment of the district court.

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United States v. Caldwell

                                       I. BACKGROUND

       In April of 2002, a municipal judge in Akron, Ohio authorized a search of 136 Bachtel

Avenue, Akron, Ohio for evidence of drug trafficking. Detective A. Stump, a 22-year veteran of the

Akron Police Department, filed an affidavit in support of the application for the search warrant. He

explained in the affidavit that, over the course of one week, he had gone to 136 Bachtel Avenue

accompanied by an “information source” and that the source had, on two separate occasions, entered

the residence and made controlled purchases of crack from Caldwell. According to Stump, the

source “observed a large quantity of crack cocaine inside of the premises” during the first purchase

and, during the second purchase, “the source observed several assault type firearms inside of the

premises.”

       Officers from the Akron Police Department executed the search warrant and seized a

Glock .45 caliber pistol and over 50 grams of crack from the residence in question. Caldwell was

present during the search. A grand jury returned a two-count indictment against Caldwell, charging

him with (1) being a felon in possession of a firearm, based upon his previous drug trafficking,

robbery, and felonious assault convictions, and (2) possessing crack with the intent to distribute.

       Caldwell moved to suppress all of the physical evidence seized during the search. After

hearing arguments, the district court denied Caldwell’s motion. Caldwell then entered a conditional

plea of guilty to both counts of the indictment, but reserved his right to appeal the denial of his

motion to suppress. The district court entered judgment against Caldwell in September of 2003,

sentencing him to 262 months of imprisonment and 10 years of supervised release. This timely

appeal followed.

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United States v. Caldwell



                                           II. ANALYSIS

A.      Standard of review

        We will set aside the factual findings of the district court in denying a motion to suppress

only if clearly erroneous, which means that “the factual findings will be overturned only if the

reviewing court has the definite and firm conviction that a mistake has been committed.” United

States v. Pinson, 321 F.3d 558, 562 (6th Cir. 2003) (citation and quotation marks omitted). The

legal conclusions of the district court, on the other hand, are reviewed de novo. Id. When reviewing

an affidavit in support of a search warrant, we consider the “totality of the circumstances” and ask

the “commonsense, practical question of whether there is probable cause to believe that contraband

or evidence is located in a particular place.” Id. (citations and quotation marks omitted). We also

accord great deference to a magistrate judge’s determination of probable cause. Id.

B.      The affidavit supporting the search warrant provided probable cause

        According to Caldwell, the affidavit underlying the search warrant failed to show probable

cause because the statements made by the information source were not corroborated. Caldwell

argues that “this Affidavit is even less than a barebones affidavit in that it only shows the affiant’s

naked endorsement of what his alleged source supposedly told him.” The facts, however, belie

Caldwell’s argument.

        This court has held that “where a known person, named to the magistrate, to whose reliability

an officer attests with some detail, states that he has seen a particular crime and particular evidence,

in the recent past, a neutral and detached magistrate may believe that evidence of a crime will be

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United States v. Caldwell

found.” Pinson, 321 F.3d at 563 (emphasis in original) (quoting United States v. Allen, 211 F.3d

970, 976 (6th Cir. 2000) (en banc)). In Pinson, this court considered the sufficiency of an affidavit

similar to the affidavit in the present case. The defendant in Pinson pled guilty to various drug

trafficking offenses, conditioned upon his right to appeal the district court’s denial of his motion to

suppress the evidence seized by the police. Pinson argued, like Caldwell, that the affidavit

supporting the search warrant was a “bare bones” affidavit lacking evidence of the confidential

informant’s (CI’s) reliability.

       This court held that the affidavit in Pinson provided probable cause for the search, reasoning

that the affiant stated that he knew the CI, named the CI to the magistrate, averred that the CI had

provided reliable information in the past, and noted that the CI had personally purchased cocaine

from the location at issue in the search warrant. Also significant was the fact that the affidavit

related that the officer had personally observed the CI make the controlled purchase, that he had

patted down the CI before and after the purchase, and that the substance purchased by the CI tested

positive for cocaine. Id. at 563.

       The facts of Pinson are similar in many ways to those in the present case. Detective Stump

watched Akron narcotics officers pat-down the source prior to each of the two controlled purchases

to ensure that the source was not carrying any drugs or money of his own. On these two occasions,

the source, after being provided with money from the Akron Police Department, entered the

premises in question and exited shortly thereafter. Detective Stump said that upon the source’s

return from the premises, “the source delivered to affiant a quantity of cocaine that the source stated

was purchased from Henry Lamont Caldwell within the premises with the funds previously

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United States v. Caldwell

provided.” In addition, the source told Detective Stump that the source had observed a large

quantity of crack inside the premises during the first controlled purchase and several assault firearms

on the premises during the second controlled purchase.

       The primary differences between this case and Pinson are that (1) the source here does not

appear to have been named to the magistrate, and (2) the past reliability of the source is less clear.

In Pinson, the officer attested to the CI’s reliability based upon “past information received from said

CI resulting in the lawful recovery of narcotics.” Pinson, 321 F.3d at 561. Detective Stump’s

description of the reliability of his source is not as detailed. He averred

       that the information source listed in the previous paragraphs of this affidavit has
       provided the affiant with information concerning the possession and sale of
       controlled substances in the Akron, Ohio area, which information has been
       corroborated by Detective A. Stump. Further, the information source has displayed
       [] specific knowledge as to the uses, effects and distribution patterns of controlled
       substances in the Akron, Summit County, Ohio area.

Although the above statement is somewhat less emphatic than in Pinson as to the reliability of the

source, there is no material difference in their legal effect, especially where the officers in both

cases actually witnessed the controlled purchases.

       The fact that the informant in this case was not identified to the judge issuing the search

warrant, moreover, is not fatal to the establishment of probable cause. See, e.g., United States v.

Davidson, 936 F.2d 856 (6th Cir. 1991) (finding sufficient probable cause for a warrant even without

considering the information provided by an unidentified informant). Here, there was adequate

corroboration to counter the fact that the informant was unidentified. As this court has noted, “an

affidavit that supplies little information concerning an informant’s reliability may support a finding



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United States v. Caldwell

of probable cause, under the totality of the circumstances, if it includes sufficient corroborating

information.” United States v. Woosley, 361 F.3d 924, 927 (6th Cir. 2004).

       An affidavit in support of a search warrant must be reviewed “in a commonsense—rather

than a hypertechnical—manner,” and this court must “consider whether the totality of the

circumstances supports a finding of probable cause.” Id. at 926. Given this standard of review and

Detective Stump’s eyewitness corroboration of the source’s controlled buys, we find no error in the

district court’s conclusion that the search in question was supported by probable cause, even though

the informant was unidentified.

C.     The district court did not err in denying Caldwell a Franks hearing or, in the
       alternative, an in camera proceeding

       Caldwell argues that the district court erred by denying him a Franks hearing to verify the

source’s reliability. A so-called Franks hearing is based upon the case of Franks v. Delaware, 438

U.S. 154 (1978), which calls for an evidentiary hearing where a defendant raises a substantial

question as to whether the affidavit supporting the search warrant contained materially false

information. Id. at 156.

       In an affidavit dated three months before entering his conditional guilty plea, Caldwell

denied that he participated in the two controlled drug purchases. He argues that this denial “makes

it clear that the likelihood is good” that no information source exists. Alternatively, Caldwell

contends that if the source does exist, then Detective Stump must have falsely characterized the

information actually provided by the source. Caldwell concludes that the allegations made against




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him in the affidavit call the reliability of the affiant and of the source into question, and that either

a Franks hearing or an in camera proceeding should have been conducted.

        When a defendant seeks to demonstrate that an affidavit underlying a search warrant

contained false information, the defendant must make a substantial preliminary showing that the

affiant knowingly and intentionally, or with reckless disregard for the truth, included false

statements in the affidavit. United States v. Rodriguez-Suazo, 346 F.3d 637, 648 (6th Cir. 2003)

(citing Franks, 438 U.S. at 155-56). “‘[I]f the allegedly false statement is necessary to the finding

of probable cause,’ the court must conduct a hearing on the issue upon the defendant’s request.” Id.

(quoting Franks, 438 U.S. at 155-56). “The intentionally or recklessly false statement must be made

by the affiant [himself], not the non-governmental informant.” Id.

        In Rodriguez-Suazo, this court considered an argument identical to Caldwell’s. The

defendant contended that either the confidential informant whose tip supplied the basis for the search

warrant did not exist, or that the affiant—a Detroit police lieutenant—falsified the information about

the informant in the affidavit. Id. at 647. Rodriguez-Suazo sought to attack the reliability of the CI

and the affiant by offering his own affidavit, denying the allegations against him. This court held

that Rodriguez-Suazo’s affidavit, “even if believed, does not equate to proof that the affiant lied or

was recklessly indifferent to the truth.” Id. at 648. Caldwell similarly failed to make a substantial

showing that Detective Stump knowingly and intentionally, or with reckless disregard for the truth,

included false statements in the affidavit. The district court was therefore justified in its denial of

a Franks hearing.




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United States v. Caldwell

       Caldwell also contends, in conjunction with his argument about the Franks hearing, that he

was entitled to an in camera proceeding to verify that the affiant did not simply fabricate the source.

He relies upon the following dicta from this court’s decision in United States v. Giacalone, 853 F.2d

470 (6th Cir. 1988), to support his argument:

       We believe that the trial judge should retain the discretion to determine what type of
       hearing is necessary, if any, to determine the veracity of the affiant in cases where
       the defendant has alleged that the affidavit contains false information, but has failed
       to make a ‘substantial preliminary showing’ that the affiant has lied such as that
       which would require a Franks hearing.

Id. at 478 n.1 (emphasis in original).

       Caldwell fails to cite any case, however, where a court has allowed some form of an in

camera proceeding in lieu of a Franks hearing under circumstances similar to the present case. We

therefore find no error in the district court’s denial of an in camera proceeding.

D.     Good faith exception

       Caldwell’s final argument is that, if we should determine that the search warrant is invalid,

then the good faith exception to the exclusionary rule would not save the warrant. This argument

is based upon the case of United States v. Leon, 468 U.S. 897, 922 (1984), in which the United

States Supreme Court held that evidence obtained pursuant to a search warrant upon which the law

enforcement officers who executed the search relied in good faith will not be suppressed, even if the

warrant is later found to be invalid. Because we conclude that there was no error in the issuance of

the search warrant in question, we have no need to consider this argument.




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                                     III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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