United States v. Tyrone Bolden ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 2, 2009
No. 08-12209 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00032-CR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE BOLDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(March 2, 2009)
Before BIRCH, BLACK and HULL, Circuit Judges.
PER CURIAM:
Tyrone Bolden, a federal prisoner convicted of possession with intent to
distribute 5 grams or more of cocaine base, 21 U.S.C. § 841(a)(1), and possession
of a firearm by a convicted felon, 18 U.S.C. § 922(g), appeals the district court’s
denial of his “Motion to Dismiss Search Warrant.” On appeal, Bolden argues the
search warrant used to search his father’s house was fatally flawed under Georgia
case law. He argues the affiant to the search warrant failed to confirm the identity
of the informant and, in any event, the information provided by the informant was
insufficient to obtain a search warrant, particularly as she denied at trial having
provided any tip to the police. Bolden also argues the district court order, barring
him from referencing the search warrant on direct examination, deprived him of a
meaningful defense. Finally, he challenges the effectiveness of his counsel’s
representation.
I. Motion to Dismiss Search Warrant
In reviewing a district court’s denial of a motion to suppress, we review the
district court’s factual findings for clear error and its application of the law to those
facts de novo. United States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008).
Such review requires that all facts be construed “in the light most favorable to the
party prevailing in the district court[.]” Id. at 1074. Here, the prevailing party was
the Government. “It is established law of this Circuit that the admissibility in
federal court of the products of state searches and seizures is controlled by federal
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law.” United States v. Clay, 355 F.3d 1281, 1283 (11th Cir. 2004).
“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). To prevail on a motion to suppress evidence
that was seized pursuant to a search warrant, based on allegations of falsity in the
supporting affidavit, the challenging party has the burden of establishing (1) the
affiant made the alleged misrepresentations or omissions knowingly or recklessly,
and (2) exclusion of the alleged misrepresentations or inclusion of the alleged
omissions would have resulted in a lack of probable cause. See United States v.
Novaton, 271 F.3d 968, 986-87 (11th Cir. 2001). In addition, it is well established
that an exception “to the requirements of both a warrant and probable cause is a
search that is conducted pursuant to consent.” Johnston v. Tampa Sports Auth.,
530 F.3d 1320, 1326 (11th Cir. 2008) (internal quotation marks omitted).
Federal law controls the admissibility of evidence that is the product of a
state search and seizure, so Bolden’s arguments based on Georgia law are
unavailing. See Clay, 355 F.3d at 1283. After reviewing the record, we find the
district court’s conclusion that the search warrant was supported by probable cause
was not clearly erroneous. Furthermore, Bolden’s father, the homeowner,
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consented to the search of the property. For these reasons, the district court did not
err in denying Bolden’s motion to dismiss the search warrant.
II. Ineffective Assistance of Counsel
We generally will not consider an ineffective-assistance-of-counsel claim
“raised on direct appeal where the district court did not entertain the claim nor
develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002). We will, however, consider such a claim on direct appeal “[i]f the record is
sufficiently developed[.]” Id. The Supreme Court in Massaro v. United States,
123 S. Ct. 1690 (2003), recognized that, although ineffectiveness claims generally
should be raised in a 28 U.S.C. § 2255 motion, “[t]here may be cases in which trial
counsel’s ineffectiveness is so apparent from the record that appellate counsel will
consider it advisable to raise the issue on direct appeal.” Id. at 1694-96.
In this case, Bolden did not raise as an issue before the district court the
effectiveness of his counsel’s representation. Nor is the alleged ineffectiveness of
his counsel apparent from the record. Therefore, the record is insufficiently
developed for this Court to consider Bolden’s ineffective-assistance-of-counsel
claim, and we dismiss this claim.
AFFIRMED in part, DISMISSED in part.
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