USA v. Jerard Keaton Davis

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12638
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERARD KEATON DAVIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cr-00195-TJC-JBT-1
____________________
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2 Opinion of the Court 21-12638
Before J ILL PRYOR , NEWSOM , and MARCUS, Circuit Judges.
PER CURIAM:
Jerard Davis appeals his convictions for possession of a fire-
arm as a convicted felon and possession of cocaine base with intent
to distribute. He argues that the district court erred in denying his
suppression motion and request for an evidentiary hearing pursu-
ant to
Franks v. Delaware, 438 U.S. 154 (1978), because the affidavit
supporting the search warrant contained material omissions and
false statements made in reckless disregard of the truth. After thor-
ough review, we affirm.
We review the district court’s denial of a motion to suppress
for clear error and its application of law to those facts
de novo.
United States v. Reid, 69 F.3d 1109, 1113 (11th Cir. 1995). Whether
an affidavit establishes probable cause is reviewed
de novo.
United
States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000). The district
court’s denial of a
Franks hearing is reviewed for abuse of discre-
tion.
United States v. Barsoum, 763 F.3d 1321, 1328 (11th Cir.
2014). We may affirm on any ground supported by the record.
United States v. Campbell, 26 F.4th 860, 879 (11th Cir.) (
en banc),
cert. denied, 143 S. Ct. 95 (2022).
The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation.”
U.S. Const. amend. IV. To establish probable cause for a search
warrant, the supporting affidavit must establish a “fair probability”
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21-12638 Opinion of the Court 3
that evidence of a crime or contraband will be found in a particular
place.
Illinois v. Gates, 462 U.S. 213, 238 (1983). In determining
probable cause, a court may consider only the information that had
been presented to the issuing judge.
United States v. Lockett,
674 F.2d 843, 845 (11th Cir. 1982). Opinions and conclusions of ex-
perienced officers about a set of facts are a factor in the probable
cause equation.
United States v. Robinson, 62 F.3d 1325, 1331 n.9
(11th Cir. 1995). Generally, if the affidavit relies on an informant,
it “must also demonstrate the informant’s veracity and basis of
knowledge.”
United States v. Martin, 297 F.3d 1308, 1314 (11th
Cir. 2002) (quotations omitted). However, there is no need to es-
tablish the veracity of the informant’s information if there is suffi-
cient independent corroborating information.
Id.
We give great deference to a determination of probable
cause by the district court.
United States v. Shabazz, 887 F.3d 1204,
1214 (11th Cir. 2018). An affidavit supporting a search warrant en-
joys a presumption of validity.
Franks, 438 U.S. at 171. Where the
affidavit supporting a warrant is “so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasona-
ble,” however, evidence seized pursuant to the warrant should be
suppressed.
United States v. Leon, 468 U.S. 897, 923 (1984) (cita-
tion and quotations omitted).
To justify a
Franks hearing, the defendant must make a “sub-
stantial preliminary showing” that an officer put in an affidavit, ei-
ther intentionally or with reckless disregard for the truth, false
statements that were necessary to the finding of probable cause for
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4 Opinion of the Court 21-12638
a search warrant.
Franks, 438 U.S. at 155–56. If, upon this show-
ing, the content in the affidavit remains sufficient to support a find-
ing of probable cause, then no hearing is required.
Id. at 171–72.
Here, in his suppression motion and request for a
Franks
hearing, Davis argued to the district court that the affidavit used in
obtaining a search warrant at his business, Supernova Clothing &
Shoes, had contained false statements and material omissions. In
the affidavit, Deputy Agustin Rodriguez averred that a confidential
informant had bought drugs from Davis three times earlier that
month -- heroin on July 3, cocaine on July 5, and crack cocaine on
July 17. The first two transactions occurred at Supernova; the third
at a nearby parking lot. Deputy Rodriguez added that Davis is an
eight-time convicted felon, that Deputy Rodriguez had received
multiple tips about Davis’s constant drug dealing, that multiple
sources had detailed Davis’s role as a major drug distributor, and
that Davis was known to distribute heroin, cocaine, and cannabis
in Flagler County.
Deputy Rodriguez also explained that, on July 17, 2018, he
had reviewed Davis’s Facebook posts, which included two 2016
photos -- one of which was a “high-resolution” photo depicting Da-
vis holding a handgun to his face, and the other photo was “an up-
close view of the handgun and all of its features.” Another Face-
book post was a live-stream video, taken on July 16, 2018, depicting
Davis holding a handgun and pointing it at the camera while he
was walking around inside Supernova. Based on the video, Deputy
Rodriguez described the handgun as small and dark in color; said
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21-12638 Opinion of the Court 5
its barrel was large enough to fire a bullet-sized projectile, thus
“eliminating the possibility of it being a BB gun or a pellet gun”;
identified the handgun as a SCCY CPX-2 nine-millimeter firearm;
and believed it to be the same handgun depicted in the 2016 photos.
Deputy Rodriguez relayed that the Flagler County Sheriff’s ar-
morer, who had reviewed images of the firearm depicted in the
July 2018 video, likewise identified the firearm as a SCCY CPX-2
nine-millimeter handgun based on the firearm’s “sights, shape,
color, ports in the grip,” and other characteristics. Deputy Rodri-
guez further detailed that, on July 25, 2018, he had spoken to a wit-
ness who had recently seen Davis with a small, dark-colored hand-
gun in the Supernova office and who reported that the handgun
“was definitely a ‘real gun’” that Davis kept in the office desk.
In challenging the statements in the affidavit, Davis argued
that Deputy Rodriguez could not have definitively concluded that
the firearm depicted in the July 2018 Facebook video was real be-
cause, according to Davis, the video’s resolution was insufficient to
discern the firearm’s barrel or other features. Davis also claimed
that the affidavit should have provided that no evidence corrobo-
rated Deputy Rodriguez’s statement that the firearm was real, or
otherwise eliminated the possibility that the firearm was not a pel-
let or replica gun.
After carefully reviewing the record, we agree with the dis-
trict court’s determination that the challenged statements and
omissions were not necessary to the probable cause finding, and,
thus, that Davis’s suppression motion and request for a
Franks
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6 Opinion of the Court 21-12638
hearing were properly denied.
See Franks, 438 U.S. at 155–56. In-
deed, putting aside the certainty with which Deputy Rodriguez
could conclude that Davis possessed a real gun, and whether the
poor video quality made it impossible to determine the size of the
muzzle, the affidavit still contained Deputy Rodriguez’s opinion
that the Facebook video depicted Davis holding a real firearm out-
side of Supernova.
See Robinson, 62 F.3d at 1331 n.9. So, even if
officers could not eliminate the possibility that the video depicted
a replica firearm, the affidavit established a “fair probability” that
evidence related to his illegal possession of a firearm would be dis-
covered since the firearm in the video appeared to match photos
on Davis’s Facebook page of what Deputy Rodriguez and the ar-
morer believed to be a 9mm pistol.
See Gates, 462 U.S. at 238.
Further, even if the affidavit failed to establish the veracity of the
anonymous informant, Deputy Rodriguez provided sufficient in-
dependent corroboration of the informant’s statement when he
averred that Davis brandished what appeared to be a 9mm pistol
outside of the same location where the informant claimed to see
him with a “real gun.”
See Martin, 297 F.3d at 1314.
To the extent Davis argues that the evidence of narcotics
distribution should not have been considered in finding that prob-
able cause supported the weapons search because 20 days had
passed since the last controlled buy, we need not address that issue.
The record supports a finding of probable cause as to his illegal pos-
session of a firearm without the evidence of narcotics distribution.
See Campbell, 26 F.4th at 879. Thus, because the unchallenged
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21-12638 Opinion of the Court 7
portions of the affidavit -- coupled with the anonymous informant’s
tip -- provided probable cause that Davis illegally possessed a fire-
arm at Supernova, we cannot say that a Fourth Amendment viola-
tion occurred. Accordingly, the district court properly denied his
suppression motion and request for a
Franks hearing, and we af-
firm.
See Franks, 438 U.S. at 155–56.
AFFIRMED.
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