United States v. Isaac Green, Jr.

NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0522n.06
Case No. 13-3844
FILED
Jul 16, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
ISAAC GREEN, JR., ) OHIO
)
Defendant-Appellant. )
) OPINION
_____________________________________ )
Before: SILER, GILMAN, and GIBBONS, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Isaac Green, Jr. was convicted by a jury on
firearms and counterfeiting charges. He received concurrent sentences of 120 months of
imprisonment on the firearms-related charges and 162 months of imprisonment on the
counterfeiting charges. All of the tangible evidence against him was obtained by the police as a
result of a search warrant executed at his residence in June 2012. Green sought to suppress the
evidence on the basis of the allegedly defective search-warrant affidavit, which he claims was
founded on intentionally made false statements.
The sole ground for Green’s appeal is the failure of the district court to grant him an
evidentiary hearing on his false-statements claim under Franks v. Delaware, 438 U.S. 154
(1978). For the reasons set forth below, we AFFIRM the judgment of the district court.
Case No. 13-3844
United States v. Isaac Green, Jr.
I. BACKGROUND
A. Factual background
In June 2012, Officer Art Carter of the Youngstown Police Department swore out an
affidavit to search a single-family residence on Upland Avenue in Youngstown, Ohio. Officer
Carter’s affidavit described the alleged criminal activity as follows:
1. During the month of December 2011, officers of the Youngstown Police
Department Vice Squad Unit, were approached by a reliable informant, who
advised officers that a subject, unknown to the informant, was selling Crack
Cocaine from 130 Upland. The Source further advised officers that the informant
could purchase Crack Cocaine from said residence.
2. Based on the above, officers initiated an investigation and conducted
random surveillance at 130 Upland. During the surveillance, officers observed
numerous subjects go to 130 Upland, stay a short period of time and leave, such
activity being common in the illegal sales of narcotics.
3. Also, during the month of December 2011, officers began receiving
complaints from concerned citizens who live in the area about illegal sales of
narcotics from the residence at 130 Upland.
4. During the week of December 12, 2011, Officer[s] Bigowsky [and]
Aeppli met with a reliable informant [who] made a purchase of Crack Cocaine
from John Doe at 130 Upland, under the controlled conditions to wit; officers met
with and searched the informant with negative results. Officers then kept the
informant under constant observation to and from the location. Upon returning,
the informant turned over to officers suspected Crack Cocaine. The informant
was searched a second time with negative results.
5. During the week of June 18, 2012, Officer[s] Carter [and] Voitus met with
a reliable informant [who] made a purchase of Crack Cocaine from John Doe at
130 Upland, under the same controlled conditions described in the previous
paragraph. Upon returning, the informant turned over to officers suspected Crack
Cocaine. The informant was searched a second time with negative results.
6. During the week of June 18, 2012, Officer[s] Voitus [and] Carter met with
a reliable informant [who] made a purchase of Crack Cocaine from John Doe at
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130 Upland, under the same controlled conditions described in the previous
paragraph. Upon returning, the informant turned over to officer[s] suspected
Crack Cocaine. The informant was searched a second time with negative results.
7. All three purchases of crack cocaine made during the weeks of December
12, 2011, and June 18, 2012, were made from a subject, known to informant as,
John Doe, described as M/B, 50’s, 5FT8IN, 150, Blk and Bro.
8. The exact dates of the Crack Cocaine purchases cannot be listed as it may
reveal the identity of the informant.
9. The Crack Cocaine from December 12, 2011 and June 18, 2012 was field
tested with positive results.
10. The informant has been to 130 Upland in the past 72 hours and observed
Crack Cocaine on the premises.
11. The informant has been proven reliable in the past by supplying officers
with information leading to the arrest of several subjects for narcotic violations
and by supplying officers with information that officers were able to verify by
their own independent investigation.
12. Officers are requesting a nighttime Search Warrant because:
A. Cover of darkness will afford the officers greater protection and safety
and allow officers to approach undetected so that items to be seized will
not be destroyed.
B. Subject named in Warrant is more likely to be present.
C. Much [of the] activity described occurred during the night season.
13. Officers are requesting that the Court authorize the search for all persons
on the premises because:
A. The insidious nature of the contraband is such that those involved will
act in secret and to the exclusion of innocent persons and possible
informants. Thus, Affiant believes that no innocent persons will be
present at the time of the search.
B. Since Affiant has requested a nighttime Search Warrant, the
probability that innocent persons will be present during the search is
minimal.
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A municipal judge reviewed and signed Officer Carter’s search-warrant application on
June 21, 2012. Later that evening, officers searched Green’s home and found Green sitting on a
couch in the living room. During the search of Green’s house and detached garage, the officers
discovered, among other things, loose crack cocaine, cocaine residue, digital scales, cash,
multiple computers, a computer printer, counterfeit money, and various firearms.
B. Procedural background
Green moved to suppress the evidence found during the search, arguing that Officer
Carter’s search-warrant affidavit was “bare bones” and thus did not establish probable cause.
One month later, Green filed a supplemental motion asserting that (1) the search-warrant
affidavit did not establish probable cause to search his detached garage, (2) Officer Carter
intentionally made false statements in his affidavit, and (3) Green was entitled to a hearing under
Franks v. Delaware, 438 U.S. 154 (1978). The district court denied Green’s motions.
II. ANALYSIS
A. Standard for a Franks hearing
A defendant is entitled to a Franks hearing if he (1) “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) “the allegedly false statement
is necessary to the finding of probable cause.” United States v. Graham, 275 F.3d 490, 505 (6th
Cir. 2001) (internal quotation marks omitted). We have previously explained that “[a] defendant
who challenges the veracity of statements made in an affidavit that formed the basis for a warrant
has a heavy burden.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990).
The first prong of the Franks analysis (whether the defendant has made a substantial
preliminary showing of intentional or reckless falsity) is a factual question that we evaluate
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under the clear-error standard. See United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011)
(“The determination as to whether a statement made in an affidavit is made with reckless
disregard of the truth is a fact question.”) (internal quotation marks omitted); see also Graham,
275 F.3d at 505 (“[T]he district court’s factual findings are reviewed for clear error.”). If a
defendant makes this substantial preliminary showing, we turn to the second prong of the Franks
analysis by removing the allegedly false statement and asking whether the search-warrant
affidavit still supports a finding of probable cause. Graham, 275 F.3d at 505.
The second prong of the Franks analysis (whether an allegedly false statement is
necessary to a finding of probable cause) is a legal question that we review de novo. Id.
(explaining that “conclusions of law are reviewed de novo”). Probable cause exists if the
remaining portions of the affidavit provide the court “with a basis for finding that there was a fair
probability that contraband or evidence of a crime would be found.” Id. at 504.
B. Green’s arguments
As a threshold matter, Green argues that Officer Carter deliberately falsified the entirety
of the substantive portions of the search-warrant affidavit because it is nearly identical to the
affidavit at issue in United States v. Pusey, 189 F. App’x 475 (6th Cir. 2006) (rejecting a Franks
challenge arising out of another search in Youngstown, Ohio). But this court has previously
determined that similar “boilerplate” arguments are without merit because the fact that a
search-warrant affidavit is an almost “word-for-word” copy of the affidavit in a prior case is
irrelevant “[a]s long as there is sufficient information to provide probable cause for the search.”
See United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996) (internal quotation marks
omitted); see also United States v. Moore, 661 F.3d 309, 312 (6th Cir. 2011) (upholding a largely
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boilerplate search-warrant affidavit where an unnamed confidential informant had witnessed the
defendant engaging in drug transactions).
In other words, the fact that officers recycle boilerplate language—a phenomenon that
Green refers to as “uncanny coincidences between . . . affidavits”—does not necessarily mean
that those officers knowingly, intentionally, or recklessly included false statements. See Weaver,
99 F.3d at 1381 (explaining that “[t]he Fourth Amendment does not require an officer to reinvent
the wheel with each search warrant application”). We therefore cannot accept Green’s
conclusory argument that Officer Carter falsified the entirety of the search-warrant affidavit
simply because it appears to have been adapted from a prior affidavit. See Bennett, 905 F.2d at
934 (explaining that, to make a substantial preliminary showing of intentional or reckless falsity
under Franks, a defendant’s “allegations must be more than conclusory”).
Instead, this court’s well-settled framework for Franks hearings requires a defendant to
“point to specific false statements” and then “accompany his allegations with an offer of proof.”
United States v. Cummins, 912 F.2d 98, 101, 103 (6th Cir. 1990) (emphasis added)
(independently evaluating the defendant’s offer of proof in support of his Franks claim and
concluding that he “has failed to meet his burden of proof in establishing deliberate falsehood or
reckless disregard for the truth”). If a defendant carries his burden of proof, then those
individual allegations—not the entire affidavit—are set aside and we review what remains to
decide the issue of probable cause. See Graham, 275 F.3d at 505 (explaining that if a defendant
makes a substantial preliminary showing of intentional or reckless falsity tied to individual
allegations, then we evaluate “the affidavit’s remaining content” rather than gaze skeptically at
the entirety of the affidavit).
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We now turn to Green’s specific challenges to the search-warrant affidavit, which pertain
to (1) Green’s appearance; (2) the sum allegedly paid by the informant for varying amounts of
drugs; (3) Officer Carter’s employment history; (4) the lack of complaints from two of Green’s
neighbors about drug activity at Green’s residence; and (5) field reports stating that the drugs
obtained during the controlled purchases tested positive for heroin, not cocaine. Tellingly,
however, none of these allegations directly challenge the affidavit’s allegations that the three
controlled purchases in fact occurred. Thus, even if we assume arguendo that Green has made a
substantial preliminary showing that several statements tangentially related to the controlled
purchases were intentionally or recklessly falsified, his argument would still fail because even “a
single controlled purchase is sufficient to establish probable cause to believe that drugs are
present at the purchase location.” United States v. Archibald, 685 F.3d 553, 558 (6th Cir. 2012);
see also United States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006) (holding that there was
probable cause for the issuance of a search warrant where the officer’s “corroboration of events
that occurred during the controlled buy, as set forth in the affidavit, provide sufficient probable
cause”).
Nor did Green actually make a substantial preliminary showing of intentional or reckless
falsity. His first allegation regarding the inconsistencies between the suspect’s description in the
search-warrant affidavit and Green’s description in the presentence report does not establish that
the affidavit was intentionally or recklessly falsified. A litany of reasons might justify these
differences, ranging from the informant’s honest though flawed recollection of the suspect’s
physical attributes, to the faulty transmission of this information to the police, to the passage of
time. For these reasons, the 2013 presentence report, with its greater variance from the
search-warrant affidavit and the police reports, does not show that the controlled purchases never
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occurred. The district court therefore did not clearly err in finding that “the informant’s
descriptions are not so significant that . . . Officer Carter’s statement was false.”
Green has forfeited his next challenge pertaining to the amount of money that the
informant paid during the controlled purchases by raising the issue for the first time on appeal.
See United States v. Lopez-Medina, 461 F.3d 724, 738–39 (6th Cir. 2006) (“[W]hen a party has
brought a pretrial suppression motion, . . . any new suppression arguments raised for the first
time on appeal that were not contained in the original suppression motion will be deemed waived
under Rule 12(e)” of the Federal Rules of Criminal Procedure) (emphasis added). We arrive at
this conclusion given Green’s concession in his reply brief that “it is true that defense counsel
did not make these specific arguments in the suppression hearing.”
Nor did the district court clearly err in concluding that Green failed to make a substantial
preliminary showing that Officer Carter intentionally or recklessly falsified his law-enforcement
experience. Although Officer Carter’s statements differ slightly between the search-warrant
affidavit and his trial testimony, Green has offered no evidence showing that Officer Carter
intentionally or recklessly falsified those portions of the affidavit. Moreover, Officer Carter’s
statements could simply be the result of negligence or mistake, neither of which entitles a
defendant to a Franks hearing. See Cummins, 912 F.2d at 102 (internal quotation marks
omitted).
Green next argues that two of Green’s neighbors testified that they had never observed
drug trafficking (or other illegal behavior) at Green’s residence. But as the district court
correctly noted, the neighbors’ testimony “does not by itself mean that other citizens did not see
such activity or that Officer Carter himself did not observe such activity.” Moreover, even if the
allegation pertaining to neighbor complaints is removed, the affidavit would still contain
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allegations pertaining to the three controlled drug purchases, the existence of which are sufficient
in themselves to support a finding of probable cause. See Archibald, 685 F.3d at 558.
We further note that Green’s reliance on United States v. Black, No. 98-5155, 1999 WL
357759 (6th Cir. May 19, 1999), with regard to the “neighbors” issue is misplaced. The court in
Black remanded the case for a Franks hearing because a neighbor’s testimony that he had never
smelled marijuana on the premises called into question the likelihood that an officer smelled
marijuana prior to exiting his police vehicle. Id. at *3 (explaining that the neighbor had been on
Black’s property “numerous times and never smelled marijuana” and was thus “in a better
position to smell the marijuana than officers sitting inside a [police] vehicle”) By contrast, the
testimony of two of Green’s neighbors is insufficient to call into question the likelihood that drug
trafficking occurred on the premises, particularly considering that both neighbors admitted that
they were away from their homes for significant periods of time.
Finally, Green disputes that the cocaine purchased by the informant was field-tested
“with positive results” because Officer Carter’s June 19, 2012 narcotics report shows a positive
result for heroin, not crack cocaine. But Green’s citation to the record is incomplete. Officer
Carter twice testified that the substance obtained during the controlled purchases was crack
cocaine. He attributed the heroin misclassification to human error, which is insufficient to make
a substantial preliminary showing that Officer Carter intentionally or recklessly falsified his
affidavit. See Cummins, 912 F.2d at 102.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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