United States v. Mark Bramlett , 232 F. App'x 940 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 26, 2007
No. 07-10414 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00004-CR-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK BRAMLETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(July 26, 2007)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Mark Bramlett appeals his conviction for possession with intent to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(viii). On appeal, Bramlett challenges the district court’s denial of his
motion to suppress evidence. After review, we affirm.
I. BACKGROUND
A confidential informant (“CI”) approached members of the narcotics task
force of the Columbus, Georgia police department. The CI indicated that he could
buy methamphetamine from Bramlett at a residence at 2908 Lee Street. Task force
agents confirmed that Bramlett resided at the 2908 Lee Street address. Agents then
arranged for the CI to make a “controlled buy” from Bramlett at 2908 Lee Street.
The CI was searched, provided with money for the purchase and outfitted with an
electronic monitoring device. Agents followed the CI to Bramlett’s residence and
observed him enter the residence, where the CI purchased two ounces of
methamphetamine from Bramlett. Using the electronic monitory device, agents
were able to contemporaneously listen to and record the controlled buy from
Bramlett in his residence. Shortly thereafter, the CI returned to the agents with the
two ounces of methamphetamine purchased from Bramlett.
While the controlled buy was being arranged, Agent Jon Memmo prepared a
request for a search warrant of the 2908 Lee Street residence and a supporting
affidavit. The supporting affidavit stated, among other things, that Agent Memmo
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had received information from a reliable CI that a quantity of methamphetamine
was located at 2908 Lee Street in the possession of Mark Bramlett and that the CI
had observed Bramlett in possession of methamphetamine within the last 72 hours.
The affidavit averred that the CI had “proven reliable in the past in that their
information ha[d] led to the seizure of a quantity of illegal drugs and the pending
arrest of at least one drug abuser.” The affidavit described the controlled buy and
stated that agents had observed the CI enter and exit the residence and return with
the methamphetamine and that the controlled buy had been monitored and
recorded by agents. The affidavit also stated that Bramlett was a “known drug
offender” who had been arrested for drug offenses in the past.
While the controlled buy was being executed, Agent Memmo met with a
Georgia superior court judge with the prepared anticipatory warrant request. Agent
Memmo and the state judge maintained telephone contact with the investigating
agents at the scene during the controlled buy. Once agents at the scene confirmed
that the controlled buy had been completed, Agent Memmo signed the affidavit
and the state judge executed the search warrant.
During the search of the 2908 Lee Street residence, agents found over 200
grams of methamphetamine and other drug paraphernalia. Bramlett was arrested
and charged by a federal grand jury with one count of possession with intent to
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distribute methamphetamine.
Prior to trial, Bramlett filed a motion to suppress the evidence found during
the search of his home. Bramlett argued, inter alia, that the evidence should be
suppressed because Agent Memmo’s affidavit supporting the request for a search
warrant: (1)“fail[ed] to adequately inform the issuing Judge of the reliability of the
CI,” and (2) “fail[ed] to reveal sufficient facts to constitute probable cause for the
issuance of the search warrant.”1 Bramlett’s motion to dismiss did not specifically
argue that Agent Memmo’s affidavit contained false statements, although Bramlett
now makes this the focus of his appeal.
The district court held an evidentiary hearing on Bramlett’s motion to
suppress. The government called Agent Memmo to testify to the procedures used
to conduct the controlled buy and to obtain the search warrant.
On cross-examination, defense counsel questioned Agent Memmo about the
meaning of his averments in the affidavit that the CI had proven reliable in the past
and that the CI’s information had led to the seizure of drugs and at least one
pending arrest. Agent Memmo explained that he had been referring both to the
controlled buy at 2908 Lee Street and to an earlier controlled buy the CI performed
1
Bramlett’s motion to suppress also argued that Agent Memmo’s affidavit failed to
provide sufficient facts to support the issuance of a “no knock” warrant and that the scope of the
search warrant was overbroad because it permitted law enforcement to search motor vehicles and
persons found on the premises.
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for the Phenix City, Alabama narcotics task force.
According to Agent Memmo, Phenix City police arrested the CI for
possession of methamphetamine. In hopes of obtaining a reduced sentence, the CI
agreed to cooperate and successfully performed a controlled buy with an unnamed
individual.
The CI told Phenix City police that he could also buy drugs from Bramlett in
Columbus, Georgia.2 The Phenix City police spoke with Sergeant Price of the
Columbus police and referred him to the CI. At that time, the drug seller in the
Phenix City controlled buy had not yet been arrested, but his or her arrest was
imminent.
Apart from cross-examining Agent Memmo, Bramlett presented no evidence
at the hearing. At the conclusion of the hearing, the district court denied
Bramlett’s motion to suppress. The district court found that Agent Memmo’s
affidavit was sufficient to establish probable cause and that the government had put
up sufficient evidence of the CI’s reliability.
Following a trial, the jury found Bramlett guilty. The district court
sentenced Bramlett to 121 months’ imprisonment. Bramlett filed this appeal.
II. DISCUSSION
2
Phenix City, Alabama is on the Alabama-Georgia border and is approximately two miles
away from Columbus, Georgia.
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On appeal, Bramlett argues that Agent Memmo’s affidavit contained false
information about the reliability of the CI and that, once this information is
omitted, the affidavit is insufficient to establish probable cause. Specifically,
Bramlett argues that Agent Memmo’s statement in his affidavit that the CI’s
information had “led to the seizure of a quantity of illegal drugs and the pending
arrest of at least one drug abuser” referred to only the just-completed controlled
buy from Bramlett at 2908 Lee Street. Bramlett complains that, contrary to Agent
Memmo’s averment, Agent Memmo’s hearing testimony established that the CI
had not been proven reliable in any other independent investigation.
“If a defendant demonstrates by a preponderance of the evidence that an
affidavit used to procure a search warrant contains intentionally or recklessly false
statements and that, the false statements aside, the affidavit is insufficient to
establish probable cause, the district court must void the search warrant and
exclude the fruits of the search.” United States v. Anderton, 136 F.3d 747, 749
(11th Cir. 1998).3 Here, Bramlett failed to show either that Agent Memmo’s
averments were false or that, without those averments, Agent Memmo’s affidavit
failed to establish probable cause.
3
The government argues that Bramlett raises this particular argument for the first time on
appeal and that thus we must review only for plain error. We need not address this issue
because, under either a de novo or a plain error standard, we conclude that the district court
properly denied Bramlett’s motion to suppress.
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At the evidentiary hearing, Agent Memmo testified that when he stated in
the affidavit that the CI’s information had led to the seizure of illegal drugs and a
pending arrest, he was referring both to the controlled buy at 2908 Lee Street and
also to the previous controlled buy conducted in Phenix City. Furthermore, Agent
Memmo explained that at the time he prepared his affidavit, the Phenix City police
had not yet arrested the subject of the Phenix City controlled buy, but an arrest was
imminent. Bramlett presented no evidence to contradict this testimony. Thus,
Bramlett failed to meet his burden to show that Agent Memmo’s affidavit
contained intentionally or recklessly false statements.
Furthermore, without the statements in the affidavit regarding the CI’s past
reliability, there was a monitored controlled buy and “sufficient independent
corroboration of [the] informant’s information,” and, thus, no need to prove the
CI’s reliability. United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002)
(quotation marks omitted). In fact, the investigating agents orchestrated the
controlled buy, observed the CI enter and exit Bramlett’s residence and return with
methamphetamine, and monitored and recorded the transaction as it occurred.
Agents also independently verified that the residence belonged to Bramlett. All
this information was conveyed to the issuing state judge. See Chapman v. State,
354 S.E.2d 149, 151 (Ga. 1987). Thus, the affidavit and the agent’s testimony to
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the state judge about the completion of the controlled buy at 2908 Lee Street
established “a connection between the defendant and the residence to be searched
and a link between the residence and [the] criminal activity.” See Martin, 297 F.3d
at 1314.4
For these reasons, the district court did not err in denying Bramlett’s motion
to suppress the evidence found in the search of his residence.
AFFIRMED.
4
Bramlett suggests that once the informant had completed the controlled buy at
Bramlett’s residence, there was no evidence that Bramlett’s residence contained any more
methamphetamine. Bramlett points to Agent Memmo’s testimony acknowledging that, at the
time, agents did not know whether Bramlett had sold the CI his entire supply of
methamphetamine. However, law enforcement need not prove to a certainty that contraband or
evidence will be found at the location to be searched; only a “fair probability” is required.
United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999); see also United States v.
Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995). Given that Bramlett had just sold the CI
methamphetamine from his residence, there was a fair probability that Bramlett had more
methamphetamine at his residence.
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