Petition for Writ of Certiorari — Daryl Lee Ingram, Petitioner v. United States

Supreme Court briefJan 23, 2018

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CAUSE NO. __________

IN THE SUPREME COURT OF THE UNITED STATES

====================================

DARYL LEE INGRAM,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

==================================

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

==================================

Respectfully submitted,

J. Lance Hopkins

CJA Panel Attorney

219 W. Keetoowah

Tahlequah, OK 74464

(918) 456-8603

Counsel for Petitioner

Daryl Lee Ingram

1

a.

The Questions Presented for Review Expressed in the Terms and Circumstances of the

Case.

Whether the Tenth Circuit erred in affirming the District Court’s denial of the Motion to

Suppress the Search of Petitioner’s Residence.

Whether the Tenth Circuit erred in affirming the District Court’s denial of the Motion for

Franks Hearing.

2

b.

List of All Parties to the Proceeding.

United States of America vs. Daryl Lee Ingram

c.

Table of Contents and Table of Authorities.

Table of Contents

(a)

Page

The Question Presented for Review Expressed

in the Terms and Circumstances of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

(b)

List of All Parties to the Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

(c)

Table of Contents and Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3, 4

(d)

Reference to the Official and Unofficial

Reports of Any Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Concise Statement of Grounds on which

Jurisdiction of this Court is Invoked . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Constitutional Provisions, Statutes, and

Rules which this Case Involves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

(g)

Concise Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

(h)

Direct and Concise Argument Amplifying the

Reasons Relied on for Allowance of the Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

(e)

(f)

(i)

Table of Authorities

Cases

Page

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L.Ed. 2d 667 (U.S., 1978) ………..

26

U.S. v. Gomez, 947 F.2d 951 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……

28

U.S. v. Hall, 12 F.3d 1109 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …. 25, 28

U.S. v. Laughton, 409 F.3d 744 (Sixth Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

3

U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15

U.S. v. McMurtrey, 704 F.3d 502 (7th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

U.S. v. Underwood, 725 F.3d 1076 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22, 23

U.S. v. Weaver, 99 F.3d 1372 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

U.S. v. West, 520 F.3d 604 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

U.S. v. Wilhelm, 80 F.3d 116 (4th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Constitutional Provisions

Fourth Amendment to the US Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28

Statutes

18 U.S.C. Sec. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9

18 U.S.C. Sec. 1956(a)(1)(b)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

18 U.S.C. Sec. 1956(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

18 U.S.C. Sec. 1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

21 U.S.C. Sec. 841(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

21 U.S.C. Sec. 841 (b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

21 U.S.C. Sec. 841(b)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

21 U.S.C. Sec. 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9

21 U.S.C. Sec. 851 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

Rules

Rule 14.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Rule 39.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Petitioner, by and through his attorney, J. Lance Hopkins, respectfully submits this

Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit. On

4

Petitioner’s behalf, counsel has submitted a Motion to Proceed In Forma Pauperis, a Proof of

Service, and a copy of the Order and Judgment from the appellate court.

This petition has been arranged in the order specified by Rule 14.1 of this Court. The

individual sections have been lettered to correspond with the subparagraphs of Rule 14.1.

Pursuant to Rule 39.2 of this Court, ten copies of this petition are being submitted for filing.

d.

Reference to the Official and Unofficial Reports of Any Opinions.

U.S. v. Daryl Lee Ingram, 10th Cir. No. 16-6221, Opinion dated December 22, 2017

e.

Concise Statement of Grounds on Which Jurisdicition of this Court is Invoked.

i.

Date of Judgment sought to be reviewed: December 22, 2017

ii.

Date of any order regarding rehearing:

iii.

Cross-Petition: None

iv.

Statutory Provision Believed to Confer Jurisdicition:

None

This case involves review of counts of conviction involving multiple United States

Criminal Statutes, and this Court has jurisdiction over such interpretation and application of

United States Statutes.

f.

Constitutional Provisions, Statutes and Rules Which this Case Involves.

i.

Constitutional provisions: Right against Unreasonable Searches and Seizures

pursuant to the Fourth Amendment to the United States Constitution.

ii.

g.

Statutes involved:

Statement of the Case:

The Petitioner, Daryl Lee Ingram, and four others were named in a 24-Count Second

Superseding Indictment in the United States District Court for the Western District of Oklahoma.

Mr. Ingram was charged in 5 counts of Indictment.

5

Count 1 charged that from on or about September 12, 2013 through on or about October

31, 2015, in the Western District of Oklahoma, Mr. Ingram, Anthony Ray Anderson, and

Michael Eugene Banks, knowingly and intentionally conspired, combined, confederated and

agreed with each other to possess with intent to distribute and to distribute more than 280 grams

of a mixture or substance containing cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1), all in

violation of 21 U.S.C. Sec. 846, the penalty for which was found at 21 U.S.C. Sec. 841

(b)(1)(A).

Count 5 charged that on or about October 23, 2014, in the Western District of Oklahoma,

Mr. Ingram knowingly and intentionally manufactured a quantity of a mixture of substance

containing a detectible amount of cocaine base, a Schedule II controlled substance, in violation

of 21 U.S.C. Sec. 841(a)(1), the penalty for which is found at 21 U.S.C. Sec. 841(b)(1)(C) and 18

U.S.C. Sec. 2.

Count 14 charged that, from on or about March 24, 2014, and continuing thereafter

through on or about January 26, 2015, within the Western District of Oklahoma and elsewhere,

Mr. Ingram, Michael Eugene Banks, Michael Shandelon Brown, and Xavier Jorge Guerrero,

knowingly and intentionally conspired, combined, confederated, and agreed with each other and

others, to interdependently conduct financial transactions affecting interstate commerce in

violation of 18 U.S.C. Sec. 1956(h), to wit: to knowingly conduct and attempt to conduct

financial transactions affecting interstate commerce and foreign commerce, which transactions

involved the proceeds of some form of unlawful activity – that is, the felonious buying, selling,

and dealing in cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1) and 846, a specified

unlawful activity – knowing that the transactions were designed in whole or in part to conceal

and disguise the nature, location, source, ownership, and control of the proceeds of specified

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unlawful activity, and that while conducting and attempting to conduct such financial

transactions, knew that the property involved in the financial transaction(s) represented the

proceeds of some form of unlawful activity, in violation of 18 U.S.C. Sec. 1956(a)(1)(b)(i).

Count 15 charged that, on or about April 1, 2014 in the Western District of Oklahoma,

Mr. Ingram knowingly and intentionally engaged in a monetary transaction by, through, or to a

financial institution, affecting interstate or foreign commerce, in criminally derived property of a

value greater than $10,000.00 – that is, the deposit of more than $10,000.00 in U.S. currency into

Safe Deposit Box No. 2203 at Chase Bank – such property having been derived from some form

of unlawful activity, that is conspiracy to distribute and possess with intent to distribute cocaine

base, in violation of 21 U.S.C. Sec. 846, a specific unlawful activity, all in violation of 18 U.S.C.

Sec. 1957 and 18 U.S.C. Sec. 2.

Count 16 charged that, on or about May 2, 2014, through on or about June 23, 2014, in

the Western District of Oklahoma, Mr. Ingram, knowingly and intentionally engaged in a

monetary transaction by, through, or to a financial institution, affecting interstate or foreign

commerce, in criminally derived property of a value greater than $10,000.00 – that is, the

purchase of a 2006 BMW 750 from S&B LLC DBA Auto Emporium, located at 4000 N. May

Ave., Oklahoma City, Oklahoma, for $19,589.00 in cash – such property having been derived

from some form of unlawful activity, that is, conspiracy to distribute and possess with intent to

distribute cocaine base, in violation of 21 U.SC. Sec. 846, a specific unlawful activity, in

violation of 18 U.S.C. Sec. 1957 and 18 U.S.C. Sec. 2.

The Second Superseding Indictment also included a forfeiture allegation, to recover a

total of $123,362.00 in currency, five firearms, and the aforementioned 2006 BMW 750

automobile.

7

Prior to trial, the Government filed a notice pursuant to 21 U.S.C. Sec. 851 regarding Mr.

Ingram’s prior convictions for sentence enhancement purposes, including prior state convictions

for Possession of Drug Proceeds, Attempted Manufacturing of a Controlled Substance;

Possession of a Controlled Drug; Drug Trafficking; Possession of Drug Proceeds; and

Conspiracy.

Mr. Ingram was convicted by jury of all of the five counts for which he was indicted.

Due to him having two prior convictions for a felony drug offense, he was sentenced under

Count 1 to the statutory minimum penalty of life imprisonment without release. He was

sentenced to 360 months as to Count 5, 240 months as to Count 14, 120 months as to Counts 15

and 16, with all terms to be served concurrently.

STATEMENT OF FACTS

On November 7, 2014, agents executed a search warrant of Mr. Ingram’s residence

located at 11009 North Miller Avenue in Oklahoma City. During their search, agents located the

following items of evidentiary value, including a total of $10,388.25 in currency:

Black nylon bag located behind the headboard of the bed in the master bedroom

that contained $7,985 in U.S. currency;

handwritten ledger located in the back pocket of a pair of women’s jeans; the

ledger reflected $48,200 of drug debts and was offered and admitted as evidence

of drug debts at trial;

$131.00 in currency located in the top drawer of the master bedroom nightstand;

$2,000 in currency located in the middle drawer of the master bedroom nightstand

with Oklahoma Department of Corrections paperwork, in the name of Mr.

Ingram;

$121.00 in currency located on the ironing board on the west side of the master

bedroom;

8

$175.00 in currency located on the dresser of the east side of the master bedroom

with a prescription bottle in the name of Mr. Ingram and a wallet with insurance

cards in the name of Mr. Ingram; and,

$97.00 located in a plastic container in the master bedroom closet.

The Affidavit for Search Warrant was 25 pages in length. The first eight pages set forth

the affiant officers training and experience. At page 9 the affiant officer set forth his general

contention that there was a gang known as the “90’s street gang”, which was involved in

trafficking narcotics, with a general allegation that the Petitioner, Mr. Ingram, was the leader of

the gang. In support of his allegation, the affiant officer referenced law enforcement interviews

with three confidential informants, each of whom purportedly named Mr. Ingram as leader of the

gang. However, outside of referring to Mr. Ingram as a drug dealer and generally referencing

alleged past drug transactions, the confidential informants provided no information regarding

specific recent drug transactions involving Mr. Ingram.

The confidential informant referenced in the affidavit as “CWI” generally stated that Mr.

Ingram obtained kilogram quantities of cocaine which were converted to cocaine base and

distributed to other members of the gang for resale. He/she referenced no specific transactions,

and there was no reference to a timeframe for those activities.

The confidential informant referenced as “CWII” made a general statement that Mr.

Ingram distributed kilogram quantities of cocaine base and that Ingram was the leader of the

gang. However, the only specific transaction with a timeframe reference was an allegation that

in April 2014 (seven months prior to the drafting of the search warrant affidavit and resulting

search) CWII observed Ingram and Tyre Cade in a white mustang, and that there was a large

amount of crack in the console of the mustang.

9

The confidential informant referenced as “CW3” generally said that he/she had a close

personal relationship with Mr. Ingram and had intimate knowledge of his drug organization.

CW3 provided a hierarchal overview as to how the organization operated and how Ingram

purportedly managed the organization. CW3 also stated that Ingram would utilize certain

females to help him distribute drugs, including one he identified as Johndra Osborne. The only

specific transaction referenced by CW3 was that he/she was present in the summer of 2014

(months prior to the date of the affidavit and execution of the resulting search warrant) when

Ingram purportedly provided another alleged member of the gang with two ounces of cocaine.

None of the above referenced confidential informants mentioned the residence sought to

be searched, and none referenced any alleged specific transaction that was more recent than

months prior to the date of the affidavit and execution of the resulting search warrant. The three

confidential informants, in describing drug trafficking activities, referenced a number of other

residences, locations, and addresses other than the residence sought to be searched (1109 N.

Miller Avenue).

The affidavit contained a section entitled “Independent Investigation Corroborating

Witness Statements”, which was basically a summary of law enforcement surveillance of Mr.

Ingram during the month of October 2014. The only reference to the residence to be searched

was that information from an investigative tracker placed by law enforcement on Johndra

Osborne’s vehicle, indicated that Osborne’s vehicle left a purported “stash apartment” and

travelled to Mr. Ingram’s residence (1109 N. Miller), and then travelled back to the purported

“stash apartment”. There were no other references to the residence to be searched in that

section.

10

The affidavit next contained slightly over three pages of references to search warrants

executed at locations other than the residence sought to be searched. And none of those warrants

were executed at a residence or other structure under the dominion and control of Mr. Ingram.

The next section of the affidavit referenced ancient arrests of Mr. Ingram or one of his

purported co-conspirators. Of the eight arrests listed, all but two were over nine-years old,

ranging from 1999 to 2005. The other two were more than two-years old, both being in 2012,

and neither one involved an arrest of Ingram.

During the last part of the affidavit, the affiant officer attempted to link the alleged

criminal activity referenced above to the subject residence. The officer just basically said that

there was general evidence that Mr. Ingram was the head of a gang that dealt drugs, that the

house sought to be searched was his residence, and therefore there was probable cause to search

the residence because his personal papers including notes of drug-transactions would probably be

there, despite the fact that the confidential informants provided no information regarding recent

and specific drug transactions involving Mr. Ingram, and despite the fact that none of the

statements by the confidential informants, nor the law enforcement surveillance, indicated that

drug trafficking or drug storage was occurring at the target subject residence.

Certain information regarding Mr. Ingram’s history was omitted from or not included in

the warrant. At page 10 of the Affidavit, the affiant officer stated the following:

Members of the 90’s street gang have been operating in the Oklahoma City

metropolitan area since at least the late 1980’s. From the inception of the gangs

operations in Oklahoma City through today, members of the gang have been involved

in the distribution of controlled dangerous substances. Currently the gang is led by

Darryl Ingram (aka “Black”, “Clacc”, and “BJ”). Ingram has several lieutenants

who comprise leadership of the gang.

11

And at page 24 of the Affidavit, the affiant stated “[b]ased upon the above listed facts

your affiant believes there has been an ongoing conspiracy by members of the 90’s street

gang to distribute controlled dangerous substances since at least September 20, 1998.”

Accordingly, the affiant officer inferred that Mr. Ingram had been a longtime leader and

member of the gang, and inferred that the gang had been involved in one huge conspiracy that

had been in continuous operation for 30 years or at a minimum the last 16 years. However, the

affiant failed to mention to the reviewing judge that Mr. Ingram was incarcerated from May 24,

2005 to September 12, 2013. And while the affiant claimed that other members of the

gang/conspiracy included Michael Banks and Aundre Cade, he failed to mention that Michael

Banks was incarcerated from 1996 to 2002 and from 2005 to 2013, and also failed to mention

that Audre Cade was incarcerated from 2005 to 2013.

On behalf of Mr. Ingram, District Court Counsel filed three motions in one document

entitled Motion to Suppress Evidence of Illegal Search of 1109 North Miller, Motion for Franks

Hearing, and Motion to Suppress Arrest Warrant. The Government filed a Response in

Opposition to those three motions. The District Court, without holding a hearing on the motions,

denied them in a written order.

Despite Mr. Ingram’s request for a hearing on the motion to suppress the search warrant,

the District Court found that a hearing was not necessary and ruled on the briefs. The Court also

denied Ingram’s request for a Franks hearing, finding that such a hearing was not necessary.

h.

Direct and Concise Argument Amplifying the Reason Relied on for Allowance of the

Writ.

PROPOSITION ONE: THE TENTH CIRCUIT ERRED IN AFFIRMING THE

DISTRICT COURT’S DENIAL OF THE MOTION TO SUPPRESS EVIDENCE

FROM THE SEARCH OF MR. INGRAM’S RESIDENCE

12

The affidavit for search warrant did not set forth probable cause to search the residence of

Mr. Ingram. None of the confidential informants mentioned the residence sought to be searched,

and none referenced any alleged specific transaction that was more recent than months prior to

the date of the affidavit and execution of the resulting search warrant. The three confidential

informants, in describing drug-trafficking activities, referenced a number of other residences,

locations, and addresses other than the residence sought to be searched (1109 N. Miller Avenue).

Outside of referring to Mr. Ingram as a drug dealer and generally referencing alleged past

drug transactions, the confidential informants provided no information regarding any recent and

specific drug transactions involving Mr. Ingram. And none of the statements by the confidential

informants, nor the law enforcement surveillance, indicated that drug trafficking or drug storage

was occurring at the target subject residence.

During the last part of the affidavit, the affiant officer, apparently realizing that probable

cause might be lacking, attempted to link the alleged criminal activity to the subject residence.

The officer just basically said there was general evidence that Mr. Ingram was the head of a gang

that dealt drugs, the house sought to be searched was his residence, and therefore there was

probable cause to search the residence because his personal papers including notes of drugtransactions would probably be there. That alone does not even come close to establishing

probable cause. The affidavit provided no information regarding recent and specific drug

transactions involving Ingram, and none of the statements by the confidential informants, nor the

law enforcement surveillance, indicated that drug trafficking or drug storage was occurring at the

target subject residence. General statements by confidential informants that a person is a drug

dealer cannot alone establish probable cause to search the person’s residence. And outside of

13

such general statements there is nothing of evidentiary substance within the affidavit, and

therefore there was no probable cause to justify issuance of the warrant.

Good-faith exception not applicable

The affidavit in the matter at bar is so void of probable cause that it cannot fall under the

exception established by the landmark decision of U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405

(1984).

The good-faith exception is not applicable in the following four situations:

(1) Where the issuing magistrate was misled by information in an

affidavit that the affiant knew was false or would have known

was false except for his reckless disregard for the truth;

(2) where the issuing magistrate wholly abandoned his judicial role

and failed to act in a neutral and detached fashion, serving merely

as a rubber stamp for the police.

(3) where the affidavit was nothing more than a ‘bare bones’

affidavit that did not provide the magistrate with a substantial

basis for determining the existence of probable cause or where

the affidavit was so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable; and,

(4) where the officer's reliance on the warrant was not in good faith

or objectively reasonable, such as where the warrant is facially

deficient.

U.S. v. Leon, supra, 468 U.S. at 923

At least two of the four exceptions to the Leon good-faith exception apply in the matter at

bar. First, considering that the affiant officer inferred that Mr. Ingram had been a longtime

leader and member of the gang, and inferred that the gang had been involved in one huge

conspiracy that had been in continuous operation for 30 years and specially alleged that the gang

had been in a conspiracy since September 20, 1998, the affiant’s failure to mention to the

14

reviewing judge that Mr. Ingram was incarcerated from May 24, 2005 to September 12, 2013,

and failing to mention that two other members of the alleged gang/conspiracy had been similarly

so incarcerated (Michael Banks was incarcerated from 1996 to 2002 and from 2005 to 2013, and

Andre Cade was incarcerated from 2005 to 2013), the affiant officer effectively misled the Court

and exhibited a reckless disregard for the truth. There is no way that Ingram and the two other

alleged co-conspirators could have been involved in a continuous conspiracy since 1998 if they

each spent eight years in prison from 2005 to 2013. Absent evidence that Ingram was directing

drug transactions on the streets of Oklahoma City from his far-away state prison cell (of which

there is none), it is a misrepresentation of the facts, and a reckless disregard for the truth, to infer

to a magistrate judge that Ingram had been involved in a continuous drug-trafficking conspiracy

since 1998. The omission and concealment of the fact that Ingram and others were so

incarcerated for all but two years of the previous decade was necessary for the issuing state judge

to find probable cause, as the judge could not have found probable cause had he known of their

recent, long-term incarcerations.

The third exception to the Leon good-faith exception applies as well, as the affidavit in the

matter at bar, while lengthy, was nothing more than a “bare bones” affidavit that did not provide the

state judge with a substantial basis for determining the existence of probable cause, and was so

lacking in indicia of probable cause as to render official belief in its existence entirely

unreasonable. The affidavit provided no information regarding recent and specific drug

transactions involving Ingram, and none of the statements by the confidential informants, nor the

law enforcement surveillance, indicated that drug trafficking or drug storage was occurring at the

target subject residence.

15

A decision of import is the case of U.S. v. Laughton, 409 F.3d 744 (Sixth Cir. 2005).

Following a tip from confidential informant Pell that he was able to purchase methamphetamine

from the defendant, Laughton, the Sheriff's Department arranged for Pell to make a controlled

buy under surveillance. Deputy Sheriff Clarke and two other officers met with Pell to conduct the

purchase. They provided him with $100.00 in marked money and patted him down to make sure

that he was not carrying any of his own money or any other narcotics. They also searched his

vehicle. Pell then drove to a residence to meet Laughton, and the police followed. The police

observed Pell enter the house and re-emerge 10 to 20 minutes later. After Pell left the house, he

drove to an arranged location, followed by the police, where he turned over methamphetamine

that he reportedly had bought from Laughton for $100.00. Pell also reported that he had seen

firearms in the house. Police officers arranged with Pell to repeat this same sequence of events

less than a week later, when officers observed defendant Laughton outside the house when Pell

approached.

The next day, Deputy Clarke swore an affidavit in an application for a warrant to search

the residence where the controlled buys had occurred. The facts contained in the affidavit were

related in four paragraphs:

Your Affiant, Det. Scott Clarke is employed by the Isabella County Sheriff

Department and has been so employed for 4 years and is currently assigned to

BAYANET [Bay Area Narcotics Enforcement Team] narcotics team. During the

course of Affiant's police career he has received extensive training in all aspects of

law enforcement, including criminal investigation in regard to controlled

substances. Affiant is familiar with the appearance of methamphetamine.

Currently your Affiant is involved with ongoing drug investigations in Clare

County. Through the course of this investigation, your Affiant has worked with a

Confidential Informant (CI), who has made multiple purchases of

Methamphetamine in the last 48 hours. Affiant has observed this controlled

purchase.

16

Through the course of this investigation your Affiant has learned that James

Howard Laughton will keep controlled substances/drugs in the crotch area of his

pants and in his pants pockets. Further that there are various stashes around the

home.

This CI is believed to be credible and reliable by the Affiant due to the fact

that the CI has provided reliable information in the past which was corroborated by

Affiant. CI has provided information that there is more controlled substances

located at or in the residence or located on the person of James Howard Laughton

due to the fact that he has observed these controlled substances.

A county prosecutor signed off on the affidavit, and a county court magistrate signed and issued

the warrant. The police executed the search and seized methamphetamine, marijuana, firearms,

and other evidence.

Laughton was charged in a six-count indictment with possession of methamphetamine

and possession of methamphetamine with intent to distribute, possession of a firearm during a

drug-trafficking crime, and being a felon in possession of a firearm. Prior to his trial, Laughton

moved to suppress the evidence seized under the warrant on the ground that the warrant was not

supported by probable cause. The District Court held a suppression hearing and ruled that the

affidavit did not demonstrate probable cause and was therefore invalid. However, the Court also

found that the warrant had been executed in reasonable reliance on its issuance and that the

evidence was therefore admissible under the good-faith exception to the exclusionary rule.

Laughton was convicted on four of the six counts. On appeal, the Sixth Circuit reversed, finding

that the good-faith exception did not apply.

The Sixth Circuit stated the following:

The warrant in this case failed to make any connection between the residence

to be searched and the facts of criminal activity that the officer set out in his

affidavit. That affidavit also failed to indicate any connection between the

defendant and the address given or between the defendant and any of the criminal

activity that occurred there. . . . Thus, the district court correctly ruled that the

affidavit did not provide a substantial basis for concluding that there was probable

cause to issue the warrant. . . . The district court nevertheless determined that,

17

although there was no valid basis for issuance of the warrant, it was executed in

good-faith reliance by the deputy and therefore did not require the court to exclude

the evidence seized, relying upon the Supreme Court's analysis in Leon. The

warrant in this case failed to make any connection between the residence to be

searched and the facts of criminal activity that the officer set out in his affidavit.

That affidavit also failed to indicate any connection between the defendant and the

address given or between the defendant and any of the criminal activity that

occurred there. . . . For the reasons set out above, we conclude that the search

warrant executed in this case was not supported by probable cause, that the good

faith exception to the exclusionary rule is not applicable to the circumstances

surrounding the search, and that the evidence seized should have been suppressed.

U.S. v. Laughton, supra, 747-752.

Similar to the situation in Laughton, in the matter at bar the affidavit failed to indicate

any connection between the residence to be searched and the facts of criminal activity that the

officer set out in his affidavit. All of the alleged criminal activity referenced in the affidavit

occurred somewhere other than the residence sought to be searched. Accordingly, the good-faith

exception does not apply to a “bare-bones” affidavit such as that involved in the matter at bar.

The Ninth Circuit recently addressed the issue in U.S. v. Underwood, 725 F.3d 1076 (9th

Cir. 2013). The Drug Enforcement Administration (“DEA”) and the Beverly Hills Police

Department conducted a wiretap investigation into a suspected drug trafficking organization

headed by Underwood's co-defendant, Jimmy Luong. The investigation revealed that Luong's

drug trafficking organization (“Luong DTO”) was likely distributing hundreds of thousands of

pills of ecstasy per week.

Subsequently, agents followed Luong and Tony Barrera, another one of Underwood's codefendants, from Barrera's residence to a Home Depot parking lot. There, agents observed Luong

and Barrera meeting with Underwood and transferring two large unmarked crates from

Underwood's vehicle to their own. Agents used surveillance to track the two crates to a Luong

18

DTO stash house where the crates were subsequently seized and found to contain thousands of

ecstasy pills.

Then, Federal agents, assisted by local law enforcement including Los Angeles Police

Department Detective James Kaiser, simultaneously executed federal arrest warrants for

seventeen suspected co-conspirators of the Luong DTO and Federal search warrants for fifteen

residences, stash houses, and vehicles. DEA Agent Peter Johnson prepared the 102–page

affidavit in support of the Federal warrants. Underwood did not contest the affidavit or the

execution of the Federal warrants. One of the Federal search warrants was executed at a house

believed to be Underwood's, on Cantrece Lane in Cerritos, California. When the officers arrived,

they found only Underwood's mother, who told them Underwood actually lived on Mansa Drive

in La Mirada, California. A search of the Cantrece Lane house did not reveal any evidence of

drug trafficking.

Later that day, at the Mansa Drive house, agents arrested Underwood and conducted a

protective sweep of the house. During that sweep, agents observed a clear zip-lock bag

containing a personal-use amount of marijuana on a table in the living room. Following

Underwood's refusal to consent to a full search of the house, DEA Agent Johnson instructed

local officers to obtain a state search warrant for the Mansa Drive house as soon as possible.

LAPD Detective Kaiser was assigned the task of securing the warrant. To assist Kaiser with the

task, Johnson emailed Kaiser a summary of the case against Underwood based on the Federal

affidavit and an explanation of why Johnson believed evidence would be found at the Mansa

Drive house. A state search warrant was subsequently issued for the Mansa Drive house.

In the state affidavit, Kaiser first listed the evidence to be seized, including: records of

drug transactions, bank account records, supplier lists, phones, drugs such as ecstasy, drug

19

paraphernalia, currency over $500, personal records such as bills, photographs and videos

involving drugs, and firearms. In a section titled “Statement of Probable Cause for Search

Warrant,” Kaiser listed his narcotics training and experience. In the next section, titled

“Narrative,” Kaiser began by stating, “On 7–15–10, I, Detective Kaiser, learned the following

from U.S. Drug Enforcement Agent Peter Johnson of the LA Office, Group 4:” The next four

and a half pages were in a different font, and were copied nearly verbatim from the Federal

affidavit prepared by Johnson. Personal experience and opinion statements in those four and a

half pages, such as “I believe,” “my surveillance observations” and “based on my training,

experience,” were all initially made by Johnson in the Federal affidavit. Kaiser never stated that

he was copying directly from Johnson's affidavit, so it was not clear from the affidavit whether

Kaiser meant to adopt these statements as his own or whether he meant to quote Johnson. Kaiser

declared later, however, that the statements should be read as from Johnson's perspective and

based upon Johnson's personal knowledge.

The narrative began:

“On July 15, 2010, United States Magistrate Judge Victor Kenton signed a

federal arrest warrant for John Michael Underwood (‘Underwood’) and a federal

search warrant for Cantrece Lane, Cerritos, CA. Underwood is a courier for a

multi-hundred thousand pill MDMA drug trafficking organization (‘Luong DTO’).

On April 14, 2010, Drug Enforcement Administration (‘DEA’) Special Agents and

Beverly Hills Police Department (‘BHPD’) Detectives observed Underwood deliver

two wooden crates to known coconspirators Jimmy Luong (‘Luong’) and Tony

Barrera (‘Barrera’). Based on the other seizures in the investigation, I believe the

crates contained approximately 260,000 pills of MDMA.”

The affidavit did not include any factual details of “the other seizures” to support

Johnson's belief that the crates contained 260,000 pills of ecstasy. The only factual support for

the conclusion that Underwood was a “courier” for the Luong DTO was that agents observed

Underwood deliver two wooden crates to Luong and Barrera.

20

The narrative went on to provide Johnson's opinions about the general behavior of drug

traffickers based on his training and experience, including that: drug trafficking is a “continuing

criminal activity taking place over months, and often years”; traffickers “commonly ‘front’

(provide ... on consignment) illegal controlled substances to their clients and thus keep some

types of records concerning monies owed and payments made”; and traffickers often keep these

records at their residences. The affidavit notes that, based on “intercepted conversations over

TT # 1–4, # 6–7 and my surveillance observations, I believe that most of the higher level

members of the LUONG DTO have been given MDMA” through “fronting” arrangements.

The affidavit did not provide factual details about the “intercepted conversations” or Johnson's

“surveillance observations,” or explain what “TT #1–4, # 6–7” meant. Johnson's affidavit from

which Kaiser apparently copied explained that “TT” is an abbreviation for “Target Telephones”

and listed the target telephone numbers and the suspected co-conspirator who used each

number. This information, however, was omitted from Kaiser's affidavit.

Following the four and a half pages copied from Johnson's Federal affidavit, Kaiser

described his role in the execution of the Federal search warrant and Underwood's arrest at the

Mansa Drive house. Regarding the finding of marijuana, Kaiser stated: “During the

[protective] sweep, Detective Davis saw an amount of what appeared to be marijuana in a zip

lock baggie on a table in the living room.”

Kaiser did not attach the Federal affidavit to his affidavit for the state search warrant for

Mansa Drive. Kaiser claimed that, because the state warrant was “based on the same

underlying probable cause of the Federal warrant” and because he referenced the Federal

warrants in his affidavit, he believed the probable cause stated by the Federal affidavit “carried

over.”

21

Based on Kaiser's affidavit, a judge issued a search warrant for the Mansa Drive house.

The judge did not ask to review the Federal affidavit referenced in Kaiser's state affidavit. The

search pursuant to the state warrant resulted in the seizure of 33 kilograms of cocaine, $417,000

in cash, 104 ecstasy pills, packaging material, a money counter, and a “pay/owe” sheet.

Underwood was charged with conspiracy to possess and distribute controlled substances,

and with possession with intent to distribute cocaine and ecstasy. He filed a motion to suppress

the evidence seized from his Mansa Drive house. Underwood argued that the affidavit

supporting the state search warrant for Mansa Drive lacked probable cause, and that the goodfaith exception did not apply because the affidavit was a “bare bones” affidavit that lacked

indicia of probable cause. The District Court granted the motion, finding that the affidavit

supporting the state search warrant lacked probable cause because the affidavit set forth mostly

conclusory allegations and only two facts: Underwood's delivery of undescribed crates to

Luong three months before the warrant application, and an observation of a personal-use

amount of marijuana in Underwood's home. The District Court further concluded that the

good-faith exception did not apply because the affidavit did not make a colorable showing of

probable cause, and was thus a “bare-bones” affidavit. The Government appealed the District

Court’s suppression of the evidence, and the Ninth Circuit affirmed the District Court.

The Court of Appeals stated the following:

When viewed in the totality of the circumstances, the affidavit fails to

establish probable cause. The affidavit does not give a reasonable judge sufficient

basis to find that it was fairly probable that Underwood was an ecstasy courier or

that evidence of ecstasy trafficking would be found at Underwood's house. To

conclude from the affidavit that Underwood is a courier for the Luong DTO

requires either blind trust in Johnson's conclusory statements or the drawing of too

many inferences. One would have to infer from the crate delivery—the only factual

allegation with a nexus to the crime charged—that: (1) Luong and Barrera are

conspirators in a drug trafficking organization, (2) the crate contained ecstasy, and

(3) Underwood knew or had reason to know the crates contained ecstasy. Further,

22

the affidavit lacks any basis from which to conclude that any of the evidence listed in

the affidavit would be found at Mansa Drive, given that expert opinion on drug

traffickers keeping such evidence at their homes was foundationless. For these

reasons, the resulting search warrant for Mansa Drive is defective under the Fourth

Amendment.

U.S. v. Underwood, supra, at 1084.

In finding that the good-faith exception did not apply, the Ninth Circuit stated the

following:

“(T)he affidavit fails to set forth a sufficient factual basis for the conclusion

that Underwood is a courier for an ecstasy trafficking organization. The only fact

with any degree of support for this conclusion is the observation that, three months

before the warrant application for Mansa Drive, Underwood delivered two wooden

crates to Luong and Barrera in a Home Depot parking lot. There are no

accompanying facts in the affidavit to support the inferences that the crates

contained ecstasy or that Underwood knew or should have known the crates

contained ecstasy. Kaiser advanced DEA Agent Johnson's belief that the crates

contained ecstasy, but did not provide underlying facts that could be used to judge

the reasonableness of Johnson's belief.

Moreover, the affidavit provides no factual basis for the conclusion that drug

trafficking evidence would be found at Underwood's home. As explained in part A,

the expert opinion about drug traffickers keeping evidence of their crimes at their

homes is foundationless because the affidavit did not assert that Underwood was a

drug trafficker, and thus cannot be used to support probable cause. Further, even if

we make the unreasonable inferences that the crates contained drugs and that

Underwood knew the crates contained drugs, Underwood delivered those crates to

Luong and Barrera, who took them away from him. We thus cannot conclude that

any drugs contained in those crates were in Underwood's possession, let alone at

Underwood's house in particular. The affidavit does not assert that any other

deliveries by Underwood to anyone else ever took place. Thus, it would also be

unreasonable to conclude that Underwood ever possessed any other crates, let alone

that such crates would be at Underwood's house.

Ultimately, the affidavit reasonably supports only the following innocent

conclusions: Underwood knows Luong and Barrera; he helped Luong and Barrera

move two crates on one occasion; and Underwood possibly uses marijuana.

Reasonable judges would agree that probable cause did not exist to search

Underwood's Mansa Drive house because the affidavit provides only the most

attenuated support for the conclusion that Underwood is a drug courier and no

support for the conclusion that drug trafficking evidence would be found at Mansa

Drive. Thus, the affidavit was a bare bones affidavit, and the good faith exception to

the exclusionary rule is per se not met.”

23

U.S. v. Underwood, supra, at 1087.

Similar to the situation in Underwood, in the matter at bar reasonable judges would agree

that probable cause did not exist to search Mr. Ingram’ residence, as there was no support for the

conclusion that drug trafficking evidence would be found there. The affidavit was a bare bones

affidavit, and the good-faith exception to the exclusionary rule was per se not met.

See also U.S. v. Weaver, 99 F.3d 1372 (6th Cir. 1996), where the Defendant was

convicted of unlawful possession of firearms and ammunition by convicted felon. On appeal, the

Sixth Circuit reversed, finding that the affidavit submitted by the detective did not support

issuance of the warrant to search defendant's residence, and the detective did not rely in good

faith on the invalid warrant.

See U.S. v. West, 520 F.3d 604 (6th Cir. 2008), where the defendant was convicted of being

a previously convicted felon in possession of ammunition. On appeal, the Court of Appeals

reversed, holding the following: initial affidavit presented for search warrant of residence and van

did not contain sufficient probable cause; initial affidavit was not subject to good-faith

exception; subsequent affidavit presented to support search warrant for van evinced a reckless

disregard for the truth; and, subsequent affidavit did not contain sufficient probable cause.

And, see U.S. v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), where the Fourth Circuit reversed

the appellant’s conviction for possession of marijuana with intent to distribute, finding that the

search warrant was not supported by probable cause, and the good-faith exception did not apply.

PROPOSITION TWO: THE TENTH CIRUIT ERRED IN AFFIRMING THE

DISTRICT COURT’S DENIAL OF PETITIONER’S MOTION FOR A FRANKS

HEARING

Considering that the affiant officer stated that Mr. Ingram had been a longtime leader and

member of the gang, and inferred that the gang had been involved in one huge conspiracy that

24

had been in continuous operation for 30 years and specially alleged that the gang had been in a

conspiracy since September 20, 1998, the affiant’s failure to mention to the reviewing judge that

Mr. Ingram was incarcerated from May 24, 2005 to September 12, 2013, and failing to mention

that two other members of the alleged gang/conspiracy had been similarly so incarcerated

(Michael Banks was incarcerated from 1996 to 2002 and from 2005 to 2013, and Andre Cade

was incarcerated from 2005 to 2013), the affiant officer effectively misled the Court and

exhibited a reckless disregard for the truth. There is no way that Ingram and the two other

alleged co-conspirators could have been involved in a continuous conspiracy since 1998 if they

each spent eight years in prison from 2005 to 2013. Absent evidence that Ingram was directing

drug transactions on the streets of Oklahoma City from his far-away state prison cell (of which

there is none), it is a misrepresentation of the facts, and a reckless disregard for the truth, to infer

to a magistrate judge that Ingram had been involved in a continuous drug-trafficking conspiracy

since 1998.

The omission and concealment of the fact that Ingram and others were so incarcerated

for all but two years of the previous decade was necessary for the issuing state judge to find

probable cause, as the judge could not have found probable cause had he known of their recent,

long-term incarcerations. Therefore, a preliminary showing was made that mandatory and

pertinent information was deliberately not included in the affidavit with reckless disregard for

the truth; and those omissions were necessary to the finding of probable cause. Accordingly, the

Tenth Circuit erred in affirming the District Court‘s decision not to conduct a Franks hearing.

The Ninth Circuit addressed this issue in U.S. v. Hall, 12 F.3d 1109 (9th Cir. 1993).

Michael Hall and John Hall (“the Halls”) appealed their Federal marijuana convictions,

25

contending that the District Court erred in denying their motion to obtain an evidentiary hearing

pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L.Ed. 2d 667 (U.S., 1978).

The Halls' residence was listed for sale. On that date, two Drug Enforcement

Administration (“DEA”) agents, posing as potential home buyers, entered the residence with a

real estate agent. Thereafter, Special Agent Daniel C. Ortega applied for a warrant to search the

Halls' residence.

In the affidavit filed in support of the search warrant application, Special Agent Ortega

alleged that he and Special Agent Gregory Bratten observed marijuana plant residue and seeds

on the carpet underneath a crawl space door in the basement of the residence. Special Agent

Ortega also related that Special Agent Bratten was able to look through a “crack” between the

crawl space door and its trim. Special Agent Ortega further alleged that Special Agent Bratten

was able to observe a bright light and a green plant located in the crawl space by looking through

this crack.

The Halls filed a motion to obtain a Franks evidentiary hearing. They asserted that

Special Agent Ortega's search warrant affidavit contained false statements. In support of their

motion, the Halls submitted the affidavit of an investigator, Randy Flocchini. Mr. Flocchini

examined the crawl space door and the trim surrounding the door on three separate occasions.

Mr. Flocchini alleged in his affidavit that the crawl space door did not fit squarely into the door

frame, leaving a gap of approximately 3/8 of an inch, through which only the inner framework of

the door could be observed. Flocchini alleged further that light could be observed in the crawl

space beneath the residence, but it was not possible to see whether the lights were bright, or if

there were any objects such as green plants within the crawl space.

26

Flocchini also alleged that he conducted an experiment to determine what could be

observed through the gap in the crawl space trim. Flocchini illuminated the interior of the crawl

space area and placed a green silk plant directly next to the door and at various distances ranging

up to six feet away. Flocchini asserted that he could not see the plant at any of those distances.

Based on his own observation and the experiment, the investigator concluded that the DEA

agent's allegations about his observations through the crawl space door were false.

The Halls also submitted the affidavit of the real estate agent who accompanied the DEA

agents through the residence, Earl Crank, who alleged that he could not recall seeing any plant

residue or plant seeds underneath the crawl space door. Crank asserted that he believed he

would have noticed any plant residue or seeds because of the DEA agents' inordinate interest in

the crawl space area. John J. Hall also submitted his own affidavit in support of

a Franks hearing. He alleged Special Agent Ortega could not have observed any marijuana

residue or seeds on the floor because the marijuana plants had not been harvested or moved from

the crawl space area.

The District Court decided the Franks issue solely on the moving papers and affidavits,

without scheduling a hearing so that counsel could argue the proffered evidence. The Court

denied the motion because it concluded that the evidence presented by the Halls did not allege

evidence that would tend to show that Special Agent Ortega intended to deceive the magistrate

judge. On appeal, the Ninth Circuit reversed, finding that a sufficient preliminary showing was

made to warrant a Franks hearing, and therefore remanded with directions to the District Court

to hold an evidentiary hearing to determine whether the challenged statements were false, and if

they were made knowingly and intentionally, or with reckless disregard for the truth.

The Ninth Circuit stated the following:

27

“The district court ruled that the Halls' evidence tended to show that the

affidavit contained false allegations that were material to the finding of probable

cause. Nevertheless, the court denied the motion for a Franks hearing because the

Halls did not ‘allege evidence that would tend to show that the affiant acted

knowingly and intentionally to deceive the Magistrate Judge or that he acted with a

reckless disregard for the truth.’ The district court correctly concluded that the

challenged statements are material to a finding of probable cause. Without the

agents' observations of marijuana residue and cultivation equipment, the affidavit

alleges nothing more than an increase in power usage and a confidential informant's

statement that sometime in December 1991 the basement of the home smelled like

marijuana. We are persuaded by our independent review of the evidence proffered

by the Halls that the district court erred in concluding that such proof, if believed,

would be insufficient to support an inference that the DEA agents deliberately or

recklessly disregarded the truth in order to deceive the magistrate judge.”

U.S. v. Hall, supra.

Similar to the situation in Hall, in the matter at bar the evidence tended to show that the

affidavit contained deliberate factual omissions that were material to the finding of probable

cause. Nevertheless, the District Court erroneously denied the motion for a Franks hearing,

See also U.S. v. Gomez, 947 F.2d 951 (9th Cir. 1991), where the Ninth Circuit reversed

the District Court’s decision to not hold a Franks hearing, finding error in the trial court’s ruling

that certain false statements in an affidavit for search warrant were not material to a

determination of probable cause.

See U.S. v. McMurtrey, 704 F.3d 502 (7th Cir. 2013), where the Seventh Circuit reversed

the District Court’s decision to not hold a Franks hearing. The Court of Appeals held that

allowing the Government, in a “pre- Franks” hearing, to offer evidence to explain the

discrepancies and contradictions in search warrant affidavits, without allowing the defense a full

and fair opportunity to challenge the explanation, violated defendant's Fourth Amendment rights,

and that the procedural error was not harmless, but rather, warranted remand for a full Franks

hearing on the merits.

i.

Appendix:

28

i.

Opinion delivered upon the rendering of judgment by the court whose

United States v. Daryl Lee Ingram, No. 16-6221 (10th Cir. December 22, 2017).

ii.

Any other opinions rendered in the case necessary to ascertain the grounds of

judgment: None

iii.

Any order on rehearing: None

iv.

Judgment sought to be reviewed other than opinion referenced in (1): None

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that a Writ of Certiorari issue

for review of the Order and Judgment of the United States Court of Appeals for the Tenth Circuit

in United States v. Daryl Lee Ingram, No. 16-6221 (10th Cir., December 22, 2017).

Respectfully submitted,

BY: _/s/ J. Lance Hopkins___________

J. Lance Hopkins, OBA#14852

CJA Panel Attorney

219 W. Keetoowah

Tahlequah, OK 74464

(918) 456-8603

(918) 456-1407 (fax)

Lance.Hopkins@lunalunallp.net

bacaviola@yahoo.com

Counsel for Petitioner

Daryl Lee Ingram

29

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33(1)(g)(i), I certify that this Petition for Certiorari is

proportionally spaced and contains 7,893 words. I relied on Microsoft Word count to obtain

word count, and I used Times New Roman, 12 pt.

I certify that the information on this form is true and correct to the best of my knowledge

and belief formed after a reasonable inquiry.

_/s/ J. Lance Hopkins

J. Lance Hopkins

30

Appellate Case: 16-6221

Document: 01019920406

Date Filed: 12/22/2017

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

December 22, 2017

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

v.

DARYL LEE INGRAM, a/k/a Black, a/k/a

Clacc, a/k/a Ninety Black, a/k/a BJ,

No. 16-6221

(D.C. No. 5:15-CR-00093-M-1)

(W.D. Okla.)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.

_________________________________

This appeal is one of two in which Daryl Lee Ingram challenges the drug and

money-laundering convictions that landed him concurrent life-without-release

sentences in federal prison. Here, Ingram disputes the district court’s denial of two

pre-trial motions: (1) a motion to suppress evidence discovered during a search of his

home and (2) a motion for a Franks v. Delaware hearing.

At bottom, Ingram makes a single contention: that the Fourth Amendment

required the suppression of the evidence seized from his home. (A Franks hearing,

after all, is just another way to gain the protection of the Fourth Amendment’s

*

This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Page: 2

exclusionary rule.) Yet after reviewing the search warrant and underlying affidavit,

we conclude that even if the affidavit failed to prove that criminal activity was afoot

at Ingram’s home, law enforcement was entitled to rely on the warrant in good faith,

to search the house, and to seize the evidence found there. Exercising jurisdiction

under 28 U.S.C. § 1291, we thus affirm.

BACKGROUND

In November 2014, Detective Matthew McRorie of the Oklahoma City Police

Department submitted to the Oklahoma County District Court a probable-cause

affidavit requesting authority to search a house located at 11009 North Miller

Avenue, where Ingram and his girlfriend allegedly resided, for evidence of a drugtrafficking conspiracy run by the Rollin’ 90’s gang. This affidavit was only a piece of

“Operation Rollin’ Rock,” a multi-agency investigation into the gang. See R. Vol. 2

at 503. But the affidavit led to a search warrant, and the execution of that search

warrant culminated in the seizure of (among other things) $10,388.25 in cash, a

handwritten ledger itemizing $48,200 in drug debts, tax returns in the name of

Ingram’s girlfriend, and paperwork from the Oklahoma Department of Corrections in

Ingram’s name.

The government, in turn, used this (and much other) evidence at two jury trials

(the first in June 2015, the second in April 2016), eventually securing Ingram’s

convictions for one count of possession with intent to distribute cocaine base, one

count of conspiracy to possess with intent to distribute cocaine base, one count of

aiding and abetting the manufacture of cocaine base, one count of conspiracy to

2

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launder money, and two counts of aiding and abetting money laundering. And in July

2016, the district court sentenced Ingram to two concurrent life-without-release

prison terms, one for the possession-with-intent-to-distribute charge and one for the

conspiracy-to-possess-with-intent-to-distribute charge, plus concurrent, term-ofmonths sentences on the remaining charges.1

Ingram now challenges Detective McRorie’s affidavit—its sufficiency and

truthfulness—in an attempt to suppress the evidence seized at 11009 North Miller

and, ultimately, win the reversal of his convictions. The affidavit therefore lies at the

heart of this appeal, so we thoroughly review its contents.

The affidavit begins by identifying the single-family home at 11009 North

Miller Avenue in Oklahoma City. It then asserts the presence, inside the house, of

items subject to seizure under Oklahoma’s drug laws, specifically:

 “Documents related to a conspiracy to distribute Controlled Dangerous

Substances to include but not limited to letters for coconspirators,

photographs depicting coconspirators, telephone records.” R. Vol. 2 at

424.

 “Items associated with membership in the 90’s street gang to include but

not limited to blue bandanas, blue clothing, University of North Carolina

Chapel Hill apparel, letters from other 90 [sic] gang members, photographs

with other 90’s gang members.” Id.

 “Documents related to the distribution of illegal drugs to include but not

limited to: records, ledgers, address books, telephone books, telephone

1

Ingram had three prior convictions for felony drug offenses. Thus, because

the jury in this case found that Ingram conspired to possess (and possessed) with the

intent to distribute at least 280 grams of “a mixture or substance containing a

detectable amount of cocaine base,” R. Vol. 1 at 353, federal law required that he be

sentenced to “a mandatory term of life imprisonment without release” on each

conviction. 21 U.S.C. § 841(b)(1)(A)(iii).

3

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bills, telephone records, rent receipts, rental car agreements, mini-storage

receipts, cellular telephone agreements, pager rental agreements, bills and

receipts related to cellular telephones and pagers, and any property and/or

U.S. currency being proceeds of or related to the distribution of illegal

narcotics.” Id.

 “Also ledgers containing quantity of narcotics possessed, ledgers of money

owed to the suspects for narcotics they have provided to co-conspirators,

ledgers of money owed by the suspects to their suppliers, transportation and

distribution instructions for the narcotics being sold, and other types of

documentation regarding the sale of narcotics.” Id.

 “Cellular phones, sim cards, and devices capable of storing digital media

(to include but not limited to smart phones, personal data assistants, hard

drives and USB drives).” Id.

 “Financial documents related to the distribution of controlled dangerous

substances to include but not limited to stored value cards, wire transfer

receipts, bank account statements, bank deposit slips, documents showing

purported income.” Id.

 “And articles of personal property tending to establish the identity of the

person or persons in control or possession of the place or vehicle, including,

but not limited to, utility company receipts, rent receipts, canceled mail

envelopes, vehicle registration, credit card receipts, repair bills,

photographs, keys, and articles of clothing[.]” Id.

Next, the affidavit lays out the facts supporting these assertions.

First, the affidavit describes Detective McRorie’s background as an Oklahoma

City police officer, including his training and experience related to “[c]riminal

[s]treet [g]angs,” id. at 426, and “[d]rug [o]rganizations,” id. at 428. Based on his

participation in other investigations, he knew, for instance, that “drug dealers

maintain books, records, receipts, notes, ledgers, money orders, and other papers

relating to the transportation, ordering, sale and distribution of controlled

substances.” Id. at 428. And “[t]he most likely place for documents associated with

4

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drug trafficking” to be found, according to the detective, “is at the primary residence

of the person involved in the trafficking.” Id. at 430.

Second, the affidavit provides an overview of the organization that law

enforcement dubbed the “90’s Street Gang Drug Conspiracy.” Id. at 432. From the

late 1980s, when the gang began operating in Oklahoma City, through the present

day, Detective McRorie claims that gang members have been involved in drug

distribution. Id. Furthermore, at the time of the affidavit, the gang’s leadership

comprised Ingram and his several “lieutenants.” Id.

Third, the affidavit provides the details of Detective McRorie’s investigation,

starting with the statements of three cooperating witnesses, two of whom were gang

members and all of whom were convicted felons either trading information for

money or hoping to receive “consideration” on pending charges. Id. at 433–35. (The

non-gang member, Detective McRorie noted, had provided information in the past

that had led to the arrest and felony-charging of five people.) Between March and

October 2014, all three informants had told police, based on their personal

observations, that Ingram headed the gang and distributed “kilogram quantities” of

cocaine base in Oklahoma City. Id. at 434–35. One of the informants, a gang member

who asserted that Ingram “call[ed] the shots” for the gang, also claimed to have

observed Ingram and a lieutenant in a car with “more crack in the center console . . .

than [the informant] had ever seen at one time.” Id. at 434–35. And the other gang

member–informant, who had “a close personal relationship” with Ingram and “an

intimate knowledge of the inner working of Ingram’s drug organization,” professed

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to have seen Ingram give another gang member two ounces of cocaine at a mall

where, the informant said, Ingram “often” sold drugs. Id. at 435–6.

The affidavit then discusses law enforcement’s independent investigation into

the informants’ statements, primarily surveillance of cars tied to Ingram and other

members of the gang, as well as a known “stash apartment.” Id. at 437–39. “Almost

every day” after police installed a pole camera outside the stash apartment in October

2014, police saw a car parked nearby that Ingram had previously been seen driving.

Id. at 437. And throughout October and early November, cars associated with gang

members traveled to and from the stash apartment and other locations affiliated with

the gang. On October 30, for example, one gang member’s car left the stash

apartment, drove to 11009 North Miller, and returned to the stash apartment. Four

days later, police watched as Ingram and two others left a motel room in the

“Meridian corridor,” a place associated with “rampant drug activity.” Id. at 439.

In addition, the affidavit lists and describes six other search warrants

associated with the case that were executed between April and October 2014. At each

of the places searched, police found drugs and ties to the gang (such as photographs

depicting members, including Ingram, displaying gang hand signs). Often, officers

found large amounts of cash, and sometimes guns, too. In listening to jail phone calls

following the searches, police also heard several incarcerated gang members ask

people on the outside whether Ingram would bail them out.

Finally, the affidavit notes eight earlier drug arrests involving gang members,

four involving Ingram. The earliest occurred on September 20, 1998, when the police

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“made contact” with Ingram and two other gang members sitting in a car. Id. at 443.

Officers arrested one of the other gang members on a gun charge, and an inventory

search of the car turned up 26.5 grams of cocaine base, 5.5 grams of marijuana, and

“one marijuana blunt.” Id. Then, about six years later, Ingram arrived by cab at a

house where officers had just detained his girlfriend. Inside the house, officers had

seized 3.4 grams of cocaine base, baking soda, a bowl coated with cocaine HCl

residue, three pistols, and close to $50,000. Ingram tried to speed away when the

officers approached but was eventually stopped and arrested. Similarly, law

enforcement seized “a large amount of cocaine,” dishes and a hand-mixer with

“residue,” and over $20,000 in cash from a hotel room where Ingram had been

staying. Id. at 444. This incident happened only three months after police found

Ingram, several other gang members, and 13.6 grams of crack inside a house, as well

as a pistol in a car parked outside. The remaining searches (the most recent in

February 2012) turned up similar amounts of cash, drugs, and guns, as well as Rollin’

90’s members other than Ingram.

After summarizing these facts, the affidavit states,

[Y]our affiant believes there has been an ongoing conspiracy by

members of the 90’s street gang to distribute controlled dangerous

substances since at least September 20, 1998. . . . Leadership of the

gang is responsible for taking actions to further the goals of the drug

conspiracy such as bonding members out of jail and contributing monies

to incarcerated members [sic] inmate trust accounts. Despite

incarceration of various members of the conspiracy, the conspiracy has

been able to thrive. Id. at 446.

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Under the heading, “Nexus to 11009 North Miller,” the affidavit then attempts

to connect the Rollin’ 90’s gang’s criminal activity to the house at 11009 North

Miller and to Ingram. Id. at 446. Citing the informants’ statements and law

enforcement’s “independent investigation,” the affidavit claims that Ingram headed

the gang’s drug conspiracy. Id. Then, the affidavit recites the following facts linking

Ingram to 11009 North Miller: (1) paperwork placed the house’s utilities in the name

of Ingram’s girlfriend, (2) an informant asserted that the house was Ingram’s primary

residence, and (3) an officer observed a car that Ingram was known to drive parked

inside the garage. Based on these facts, the affidavit concludes that 11009 North

Miller was Ingram’s primary residence. Id.

The affidavit then repeats Detective McRorie’s belief that “the most likely

place for a drug trafficker to keep records pertaining to their [sic] criminal activity

and conspiratorial evidence is at their [sic] primary residence.” Id. at 446. In support

of this conclusion, the affidavit notes, among other things, that (1) “to thwart law

enforcement” from tying them to contraband, “[h]igh level drug traffickers” typically

don’t keep drugs in their homes but that (2) at the same time, traffickers typically

don’t destroy documentary evidence of drug distribution unless they think that a

search is imminent, both because such evidence is necessary for their business’s

continued operation and because the traffickers think that it’s less incriminating than

“readily apparent contraband,” such as drugs. Id. at 446–47. Finally, “[a]ll reasonable

inferences [as] to where a criminal would likely keep such evidence,” based on the

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“hundreds” of searches that the detective had conducted, pointed to the drug

trafficker’s primary residence. Id. at 447–48.

The affidavit then states, “Based on the above information, in [Detective

McRorie’s] opinion, there is probable cause to believe that [Ingram, his girlfriend,

and others] are involved in illegal activities, such as drug trafficking” and that “the

aforementioned objects” (presumably, the evidence discussed at the beginning of the

affidavit) could be found at 11009 North Miller. Id. at 448. The affidavit thus

requests a search warrant for the house.

Detective McRorie presented the affidavit to the Oklahoma County District

Court on November 6, 2014. The court issued it that same day, and police executed it

the next. As mentioned above, they found the predicted documentary evidence,

including large amounts of cash, a drug ledger, and paperwork linking Ingram and his

girlfriend to the house.

Ingram moved to suppress this evidence, to set a Franks v. Delaware hearing,

and to suppress an arrest warrant issued by the Oklahoma County District Court. The

federal district court denied all three requests, concluding that (1) the search-warrant

affidavit contained sufficient probable cause, (2) the items seized from Ingram’s

house should not be suppressed, and (3) Ingram’s motion to suppress the arrest

warrant was moot because the warrant was never executed (police arrested Ingram

during a traffic stop).

Ingram now argues that the district court erred in refusing to suppress the

evidence discovered at 11009 North Miller.

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DISCUSSION

In arguing that the evidence discovered during the search of 11009 North

Miller should have been suppressed, Ingram attacks both the sufficiency and the

truthfulness of Detective McRorie’s affidavit. As to sufficiency, Ingram claims that

the affidavit failed to provide a nexus between the suspected criminal activity (drug

trafficking) and the place to be searched (11009 North Miller). And as for

truthfulness, Ingram contends that Detective McRorie misled the Oklahoma County

District Court by failing to mention (1) that Ingram had spent eight of the nine years

leading up to the search in prison and (2) that simultaneously, two other members of

the alleged drug-trafficking conspiracy had also been imprisoned for considerable

periods. In response, the government defends the state court’s probable-cause

determination and, in the alternative, contends that the good-faith exception to the

exclusionary rule should apply.2

On review of a district court’s suppression ruling, we accept the court’s factual

findings unless they are clearly erroneous and review questions of law de novo.

United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005). The pertinent

questions here—Was the search warrant supported by probable cause? Did the goodfaith exception apply?—are both questions of law. Id. But if we determine that the

good faith exception applies, then we need not decide whether the search-warrant

2

In an alternative to its alternative argument, the government urges us to hold

that any error in admitting the evidence seized from 11009 North Miller was

harmless given the overwhelming weight of evidence against Ingram. Because we

resolve the good-faith issue in the government’s favor, we don’t reach this alternative

argument.

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was supported by probable cause. Thus, we have discretion to skip the probablecause question and proceed directly to good faith. Id. We choose to follow that path

here, so we evaluate Ingram’s claims under the good-faith exception to the

exclusionary rule.

In United States v. Leon, 468 U.S. 897, 918 (1984), the Supreme Court held

that the “suppression of evidence obtained pursuant to a warrant should be ordered

only on a case-by-case basis and only in those unusual cases in which exclusion will

further the purposes of the exclusionary rule.” When an officer acts in objective good

faith in obtaining a search warrant from a detached, neutral magistrate, and then acts

within the scope of that warrant, no police illegality occurs that the exclusionary rule

would deter. Leon, 468 U.S. at 920–21. Thus, evidence seized through such means

shouldn’t be suppressed. Id. at 921; accord United States v. Nolan, 199 F.3d 1180,

1184 (10th Cir. 1999).

But our deference to warrants isn’t “boundless.” Leon, 468 U.S. at 914. In

Leon, 468 U.S. at 923–24, the Supreme Court described four exceptional instances

when an officer can’t rely on a warrant in good faith. Two of those are at issue here.

A.

The “Bare Bones” Exception to the Exclusionary Rule

First, Ingram contends that the search-warrant affidavit was completely devoid

of probable cause because it lacked any information suggesting that illegal activity

(specifically, “drug trafficking or drug storage”) was afoot at 11009 North Miller.

Appellant’s Opening Br. at 20. So, he contends, the police shouldn’t have been able

to rely on the search warrant in good faith.

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An officer doesn’t manifest objective good faith in relying on a search warrant

based on an affidavit “so lacking in indicia of probable cause”—so “bare bones”—as

to render official belief in the existence of probable cause “entirely unreasonable.”

Leon, 468 U.S. at 915, 923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975)

(Powell, J., concurring in part)). The question isn’t the legal sufficiency of the

affidavit—the issuing court has already made that determination, and we owe it

deference. United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985). The

question is “whether a ‘reasonably well trained officer would have known that the

search was illegal despite the [court’s] authorization.’” Gonzales, 399 F.3d at 1230

(quoting Leon, 468 U.S. at 922 n.23). In this context, that means asking whether

officers’ reliance on the underlying documents was “wholly unwarranted.” Cardall,

773 F.2d at 1133. Only then is good faith absent. Id.; Gonzales, 399 F.3d at 1230.

In practice, we’ve used this standard to suppress evidence seized with a

warrant that contained “nothing more than a hunch.” See, e.g., United States v.

Cordova, 792 F.3d 1220, 1226 (10th Cir. 2015) (“Boiled down, the affidavit at issue

here indicated nothing more than that a high-volume drug delivery was set to be

made to a vehicle parked in front of Cordova’s former home nearly two years before

officers sought a warrant for his current home and that one party to that drug deal

was present at Cordova’s current residence on one occasion four months before the

warrant was executed.”); Gonzales, 399 F.3d at 1230–31 (concluding that an affidavit

whose only attempt at connecting the suspect to the criminal activity was a

detective’s assertion that “in his experience, ‘firearm [sic] are often kept at the

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residence,’” didn’t set forth even a minimal nexus to criminal activity (alteration in

original)).

Here, Detective McRorie’s affidavit may have provided only a tenuous nexus

between the Rollin’ 90’s gang’s criminal activity and 11009 North Miller, but it

amounted to more than a hunch. As we have often stated, it’s “merely common sense

that a drug supplier will keep evidence of his crimes at his home.” United States v.

Sanchez, 555 F.3d 910, 914 (10th Cir. 2009); see also, e.g., United States v. Windrix,

405 F.3d 1146, 1153 (10th Cir. 2005); United States v. Sparks, 291 F.3d 683, 689–90

(10th Cir. 2002); accord 2 Wayne R. LaFave & David C. Baum, Search & Seizure

§ 3.7(d) (5th ed., Oct. 2017 update) (“[I]t is commonly held that this gap [between

probable cause that a person has committed a crime on the street and probable cause

that evidence of the crime exists at his house] can be filled merely on the basis of the

affiant-officer's experience (or, for that matter, the magistrate’s own common-sense

judgment) that drug dealers ordinarily keep their supply, records and monetary

profits at home.”). And Detective McRorie’s affidavit provided ample evidence that

Ingram dealt drugs, including the three informants’ statements, the police’s

surveillance of Ingram, and Ingram’s history of drug activity and arrests. When

combined with the assertion, based on the detective’s training and experience, that a

high-level drug trafficker like Ingram probably kept incriminating records at his

primary residence, this evidence warranted good-faith reliance from the officers who

executed the search.

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In reaching this conclusion, we note that this case differs from cases like

Sanchez, Windrix, and Sparks insofar as the affidavits in those cases asserted the

presence of illegal drugs at the suspected dealer’s house, while the affidavit here did

not. See Sanchez, 555 F.3d at 913, Windrix, 405 F.3d at 1153, Sparks, 291 F.3d at

690–91. Even Professor LaFave’s gap-filling shortcut, which recognizes that

experience and common sense can sometimes substitute for “definite proof,”

presumes either (1) that “the seller keeps his supply at his residence” or (2) that “the

on-the-street dealer has his necessary packaging and weighing equipment at home.”

See LaFave, supra, § 3.7(d). But according to Detective McRorie, Ingram was no onthe-street dealer; he was a high level drug trafficker. Detective McRorie thus

expressed doubt that Ingram kept illegal drugs at his primary residence. And the

pieces of evidence that the detective sought to find there—ledgers, cash, evidence of

gang-membership—were not themselves contraband. Instead, police sought the listed

items as evidence of Ingram’s criminal activity, ledgers reflecting drug debts, cash

from drug sales, and gang-affiliation evidence tied to the drug-trafficking conspiracy

and Ingram’s role in it.

But while we do not announce a broad rule making a suspected drug dealer’s

house fair game for searches absent evidence of contraband there, we can’t say that

the affidavit in this case was so devoid of factual support as to render police reliance

on the state-court judge’s determination of probable cause objectively unreasonable.

Cf. Nolan, 199 F.3d at 1185 (concluding that an affidavit establishing (1) that the

defendant dealt crack, (2) that he “was careful not to sell drugs to anyone from his

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residence,” and (3) “that drug dealers sometimes maintain records and quantities of

drugs in easily accessible locations” wasn’t so bare bones as to make officers’

reliance on the search warrant unreasonable).

Accordingly, we reject Ingram’s contention that the affidavit was so bare

bones as to subject the evidence seized at 11009 North Miller to the exclusionary

rule. And we turn from Ingram’s sufficiency attack to his truthfulness attack.3

B.

The Franks v. Delaware Exception to the Exclusionary Rule

Ingram claims that Detective McRorie deliberately lied (or acted with reckless

disregard for the truth) when he omitted Ingram’s and his alleged co-conspirators’

incarceration from the search-warrant affidavit. These omissions, according to

Ingram, were material to the Oklahoma District Court’s probable-cause finding. He

says that if the detective had stated that Ingram and his co-conspirators were in state

custody from 2005 until 2013, then the judge wouldn’t have believed that “Ingram

had been involved in a continuous drug-trafficking conspiracy for the last [sixteen]

years [i.e., since 1998].” Appellant’s Opening Br. at 56.

3

Ingram also challenges Detective McRorie’s reliance on the statements of the

three confidential informants, but he does so only in the context of arguing that the

affidavit lacked probable cause. Because we resolve this appeal on the basis of the

exclusionary rule’s good-faith exception, we don’t delve into the existence of

probable cause and, therefore, need not address the informants’ veracity. Even so, the

same concerns that throw probable cause into doubt may do the same to good faith.

Accordingly, we note that the district court found the informants’ statements reliable,

both because the informants corroborated each other and because other evidence

(including surveillance) supported their assertions. Cf. United States v. Mathis, 357

F.3d 1200, 1204 (10th Cir. 2004) (concluding that an officer’s obligation to

corroborate information received from an informant requires only that the officer

“have knowledge of other matters that reasonably corroborate the informant’s

statements”). The district court’s findings in this context weren’t clearly erroneous.

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Suppression remains an available remedy if the affiant misled the judge

issuing the warrant with information “that the affiant knew was false or would have

known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923

(citing Franks v. Delaware, 438 U.S. 154 (1978)). But Franks announced a tough-tomeet test for affiants’ alleged lies. First, Franks cloaks affidavits in “a presumption

of validity.” Franks, 438 U.S. at 171. Establishing a lack of good faith based on the

omission of information from an affidavit requires proof that the affiant acted

intentionally or recklessly, not with mere negligence or by an innocent mistake.

Gonzales, 399 F.3d at 1229. Second, Franks doesn’t extend to “immaterial

omissions.” Stewart v. Donges, 915 F.2d 572, 583 (10th Cir. 1990). If “a warrant

would have issued in a but-for world where the attesting officer faithfully represented

the facts,” then we can dismiss the contested omission as immaterial. United States v.

Herrera, 782 F.3d 571, 575 (10th Cir. 2015).

Here, Ingram can’t overcome even the first hurdle, the presumption of validity.

Rather than hide Ingram’s eight-year incarceration, Detective McRorie’s affidavit

suggested that Ingram had served time. According to the affidavit, police had arrested

Ingram on drug charges four times between 1998 and 2005 (just over nine years

before the warrant’s execution). Though the affidavit didn’t provide charging or

sentencing information about these incidents, the amounts of drugs and guns seized

augured prison time. Further, the affidavit expressly described the gang’s ability to

“thrive” despite the incarceration of its members, by contributing money to

incarcerated members’ inmate trust accounts and bonding members out of jail. At

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worst, Detective McRorie might have acted negligently by not specifying the dates of

Ingram’s incarceration. At best, the affidavit read as a whole shows the conclusory

nature of Ingram’s assertion. Either way, Ingram can’t show the kind of deliberate or

reckless falsity that would entitle him to relief under Franks.4

But even if Detective McRorie had acted with deliberate or reckless disregard

for the truth in omitting Ingram’s and his alleged co-conspirators’ periods of

incarceration, the omission wasn’t material. Nothing in the affidavit suggests that

Ingram was on the streets when in fact he was in prison or that he was in prison when

in fact he was on the streets. Instead, the bulk of the drug-trafficking described in the

affidavit happened in 2014, when Ingram was, by his own admission, out of prison.

Thus, even if Detective McRorie had included Ingram’s and his co-conspirators’

incarceration periods in the affidavit, it wouldn’t have undermined the Oklahoma

County District Court’s probable-cause finding. Herrera, 782 F.3d at 575; cf.

Stewart, 915 F.2d at 581–83 (concluding that a detective’s failure to disclose that the

victim had recanted his accusation and admitted to an insurance scam was “highly

material” because “the affidavit would not support probable cause if it were modified

so as to include that exculpatory evidence”).

4

On appeal, Ingram argues both that the district court erred in refusing to

grant him a hearing on his Franks claim and, more generally, that under Franks, law

enforcement couldn’t rely on the search warrant in good faith. Our analysis doesn’t

differentiate between the preliminary showing needed to get a Franks hearing and the

preponderance-of-the-evidence showing needed to obtain suppression because, under

either standard, Ingram isn’t entitled to relief. See United States v. Corral-Corral,

899 F.2d 927, 933 (10th Cir. 1990) (describing the standard at each stage); see also

Herrera, 782 F.3d at 576 (“A Franks hearing sometimes may be a matter of grace

rather than right.”).

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Accordingly, we conclude that the state-court judge’s probable-cause

determination wasn’t based on a deliberate or reckless omission by Detective

McRorie, so we decline to apply Franks to defeat the Leon good-faith exception.

Instead, we affirm the district court’s refusal to grant Ingram a Franks hearing.

*

*

*

Applying Leon’s generous standard, the police in this case acted in good faith

in executing the search warrant on 11009 North Miller. And because no exception to

the good-faith exception applies, we conclude that this is not one of “those unusual

cases in which exclusion will further the purposes of the exclusionary rule” and

decline to suppress the evidence seized during the search. See Leon, 468 U.S. at 918.

CONCLUSION

For these reasons, we affirm the district court’s refusal either to suppress the

evidence seized from 11009 North Miller or to hold a Franks v. Delaware hearing.

Entered for the Court

Gregory A. Phillips

Circuit Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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