                                                     [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAR 29, 2006
                             No. 05-14709                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 03-00270-CR-T-N

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

TRACY HARRIS,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      _________________________

                             (March 29, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Tracy Harris appeals his conviction for possession of a firearm by a

convicted felon, a violation of 18 U.S.C. § 922(g). On appeal, he argues that the

district court erred by denying his motion to suppress firearms seized pursuant to a

search warrant. Specifically, he argues that (1) the police knowingly or recklessly

included false statements in the affidavit for the search warrant; (2) the warrant

was not supported by probable cause; and (3) the officers could not have relied in

good faith on the warrant. For the reasons set forth more fully below, we affirm

the district court’s denial of the motion to suppress.

      Prior to trial, Harris filed a motion to suppress firearms seized pursuant to a

warrant, arguing that (1) the confidential informant used to secure the warrant was

unreliable, the information was insufficiently corroborated, and the totality of the

circumstances did not indicate a fair probability of finding contraband at his

residence; (2) the affiant made material misrepresentations in the application for

the warrant; (3) the officers could not have relied in good faith on the warrant; and

(4) the evidence could not have been seized under the “plain view” doctrine.

      Notably, the government in its response asserted that the information used to

procure the warrant was not obtained as the result of an undercover buy, which is

why there were no audio recordings, marked money, or post-buy search evidence

to back up the confidential informant’s statements. The affidavit for the warrant,



                                           2
submitted by Officer Robin Daniels, stated, in relevant part, that:

       He is a deputy with the Crenshaw County Sheriff’s Department. That
       within the past 24 hours he has received information from a
       confidential and reliable source. The information is that marihuana
       and cocaine are being sold from and stored at the Harris residence.
       The source made a controlled purchase of marihuana and cocaine
       from within the residence. The source has given me information that
       has led to the recovery of stolen property in the past. The source is
       reliable. The buy was made in the past 24 hours in the kitchen of the
       house.

A magistrate issued Daniels a warrant authorizing police to search Harris’s

residence and seize any marijuana, cocaine, or money that could “be connected to

the sale of illegal drugs.”

       An evidentiary hearing was held before a magistrate judge, and among the

issues of concern was whether or not a “controlled buy” had actually occurred, as

the affidavit for the search warrant indicated that it had, while the government’s

brief indicated that it had not. Harris also told the court that he had requested from

the government any drugs that were purchased or toxicology reports concerning

those drugs, as the government would have that information if the buy was, in fact,

controlled. The government indicated to the court that it did not know what

happened to the drugs, but that it expected its witness to testify concerning a

controlled purchase.

       Before any witnesses had testified, the government informed the court that it



                                           3
had just learned that the drugs purchased from Harris’s residence were in the

custody of the Crenshaw County evidence vault, and could possibly be retrieved by

afternoon for the court’s inspection. The government then called Crenshaw

County Sheriff’s Department Investigator Ronnie White, who testified that he had

experience and training in conducting controlled drug buys with confidential

sources. White testified that he was aware that Harris had a prior felony conviction

for a drug offense.

      On April 8, 2003, White, along with three other officers, including Robin

Daniels, conducted a search of Harris’s residence, and White, prior to the search,

told the other officers about Harris’s prior drug conviction. White and the other

officers conducted the search pursuant to a search warrant, the affidavit for which

was completed by fellow officer, Daniels. White was present when Daniels made

his affidavit for the warrant, and testified that the investigation of Harris began

when a confidential informant told the officers that he (the CI) had been involved

in receiving stolen property. White said that the CI had been used in other cases,

including a case involving the recovery of stolen property and drugs in Crenshaw

County approximately a week earlier. The CI’s information in that case was

accurate, and the CI had never provided untruthful information. Regarding Harris,

the CI informed White and Daniels that he and others would occasionally stop by



                                           4
Harris’s residence after committing burglaries and obtain drugs from Harris, using

as currency either money or the stolen property.

      In response to the CI’s information, White and Daniels decided to set up a

controlled buy of drugs at Harris’s residence. Daniels and White briefed the CI,

searched the CI’s vehicle and person, and then sent the CI to make the purchase

while White and Daniels waited in separate cars on different sides of Harris’s

residence. The CI later emerged and handed over drugs that he said he had

purchased from Harris. White identified the drugs as marijuana and cocaine, and

he and Daniels went before a judge to procure a warrant. White then explained

that the statement in the affidavit for the search warrant regarding the CI making a

“controlled purchase” referred to the CI going into Harris’s residence to purchase

drugs while being monitored. The CI, however, did not wear any wires or audio

transmitters because the sheriff’s department, being in a “small,” “poor” county did

not have any such equipment. The department also did not have any video

surveillance equipment.

      Accompanied by other officers, White helped to execute the search warrant,

and he testified that the search of Harris’s residence was quite extensive and

covered the entire residence because of how easy it was to hide narcotics. The

search found no drugs or money, and White testified that, at the time he and



                                          5
Daniels went to a judge for a search warrant, they had no information as to what, if

any, stolen property was at Harris’s residence; therefore, the search warrant did not

mention stolen property. However, a chainsaw, a Remington shotgun, and a

Remington rifle were all found by Daniels in a bedroom closet. An inventory sheet

was left at Harris’s residence, and shortly thereafter, Daniels and White,

responding to a call that Harris had been located at a Dollar Store, went to the store

and arrested Harris “for receiving stolen property on the shotgun.” When Officer

Daniels first approached Harris, he read him his Miranda rights, and after those

rights had been read, Daniels informed Harris that he had found stolen property at

Harris’s residence, prompting Harris to say that there was nothing stolen in his

house except the shotgun.

      On cross-examination, White admitted that he had insufficient information,

based on the CI’s tip, to get a search warrant for stolen property and that many of

the items seized from Harris’s residence, such as a TV, a VCR, and some

videogame consoles, were taken based on the belief (later shown to be erroneous)

that they constituted stolen property traded for drugs. As to the controlled buy,

White stated that the preferred method was to watch the CI make the purchase, but

that in this case, it was impossible to do, and, therefore, no one actually saw the

purchase take place. Despite the fact that the police gave the CI money to make



                                           6
the purchase, White testified that the money was not marked, recorded, or

retrieved. After entering Harris’s residence, the CI returned to White’s vehicle and

handed White a bag with a small amount of cocaine and a marijuana cigarette.

      White further testified that, in addition to having no video or audio recording

of the controlled buy, there was no completed report regarding the buy.

Furthermore, the affidavit for the search warrant did not state from whom the drugs

were purchased despite the fact that Harris had a roommate, nor did the affidavit

mention that the substances had been tested to determine whether they were in fact

narcotics. As to the guns, White testified that Daniels found them in a bedroom

closet along with hunting apparel.

      Harris then called Officer Robin Daniels, who had applied for the search

warrant at issue in the case. Daniels testified that he applied for a warrant to search

Harris’s single-wide mobile home, also occupied by another person, and that the

affidavit for the warrant was all in his handwriting with the exception of the line,

“The buy was made in the past 24 hours in the kitchen of the house,” which was

written by the magistrate judge who issued the warrant.

      Daniels testified that a confidential informant had indicated that he had been

able to obtain marijuana and cocaine from Harris’s residence, and that Daniels’s

affidavit for the warrant stated that the informant had provided reliable information



                                           7
leading to the discovery of stolen property on another occasion. The informant’s

tip about Harris occurred a few days before the search of Harris’s residence, and

Daniels corroborated the location of Harris’s residence by having the informant

point out the location on a drive-by. Daniels then set up the controlled purchase,

although he did not accompany the informant to Harris’s residence. However,

none of the officers involved in the organization of the purchase were physically

present at the location of Harris’s residence at the time of the purchase. Daniels

testified that he was 3/4 of a mile away at a store, while White was located a little

closer to the residence on a county road. Another officer joined White on the same

county road, but further from the residence than either Daniels or White. Daniels

confirmed that the informant and the informant’s car were both searched prior to

the purchase, and police had provided the funds used to make the purchase.

      Daniels also testified that the CI had made another controlled purchase that

same day at a different residence and in an unrelated case, conducted in the same

way as the one at Harris’s residence. Prior to the purchase at Harris’s residence,

the CI was debriefed on the other purchase, and the officers conducted another

search of the CI’s person and vehicle to make sure he had not picked up a weapon

or anything else. Daniels testified that the CI was joined by his girlfriend on the

purchase at Harris’s residence, but that the girlfriend was also searched before and



                                           8
after the purchase. Daniels did not know whether the girlfriend had accompanied

the CI into Harris’s residence. The CI conveyed to Daniels that he had purchased a

small amount of marijuana and cocaine from a person identified only as a black

male. Thus, Daniels admitted that he did not know whether Harris was present at

his residence at the time of the purchase. No analysis was done of the seized

drugs.

         As to the search itself, Daniels testified that the warrant authorized him to

seize any marijuana, cocaine, or money connected as drug proceeds. No

marijuana, cocaine, money, or drug paraphernalia was seized, but the inventory

sheet from the search reflected that numerous appliances and electronics were

taken based on the CI’s assertion that stolen goods were traded for drugs. Daniels

also found a Remington shotgun and rifle in a bedroom closet and obtained the

serial numbers after removing a few live rounds from the rifle. He searched the

closet to ensure that no one was hiding inside, as well as to check for any drugs

that might be hidden. After obtaining the serial numbers, Daniels ran a check on

the firearms, left Harris’s residence, and proceeded to the Dollar Store, where he

read Harris his Miranda rights and arrested him. Daniels told Harris that he wanted

to talk to him about some stolen property, prompting Harris to mention something

about the shotgun.



                                             9
      The court questioned Daniels about his interactions with the magistrate who

issued the warrant, and Daniels could not recall any specific information he gave

regarding how he knew that Harris was the owner of the residence to be searched.

As for the line in the affidavit written by the judge, Daniels testified that the

issuing magistrate asked a lot of questions and routinely would remove or add lines

to warrants based on the responses.

      On cross-examination, Daniels reiterated that the reason he believed the

informant to be credible was that he had provided law enforcement with accurate

and detailed information in other investigations, one in another county regarding

burglaries, and the other in Crenshaw County regarding the location of stolen

property. Daniels also admitted that he knew, at the time of the search, that Harris

previously had been convicted of a felony. In particular, Daniels had been told that

Harris had spent time in jail for drug charges. Daniels also identified (as

Government Exhibit 5) the marijuana and cocaine purchased by the informant from

Harris’s residence, although he could not recall whether the drugs had been field

tested. Notably, the bag containing the drugs from Harris’s residence also

contained drug evidence seized from another location that same night. When

asked why none of the officers accompanied the informant into Harris’s residence

to make the controlled buy, Daniels testified that, because of the small size of the



                                           10
county, he thought any of them would have been recognized. Daniels was also

asked why he considered the CI’s purchase a controlled buy, and he responded

that, in his opinion, it would have been viewed that way by the judge because the

police provided the money, searched the CI, and had a specific place in mind.

Daniels later testified that the bag containing the drugs (exhibit 5) contained no

notations as to where the bag came from or the date on which it was received.

      The court then questioned Daniels about the warrant process, specifically

about why none of the evidence about the CI’s reliability to which Daniels testified

was included in the affidavit used to support the warrant, and Daniels testified that

the magistrate who issued the warrant had, in the past, stricken overly detailed

explanations of why an informant should be considered credible. Thus, Daniels

wrote out his warrant application beforehand and, after he submitted it to the

magistrate, had a detailed conversation about the informant’s reliability rather than

writing it all on the application. The court explicitly asked Daniels how it was

supposed to know that Daniels had communicated to the magistrate all of the

testimony he had given to confirm the reliability of the informant prior to April 8,

2003, the date of the warrant, and Daniels replied that his testimony was what he

remembered and “that was really just the way things worked” with that particular

magistrate.



                                          11
       Daniels further testified that, after the guns had been found, a NCIC 1 check

of the serial numbers revealed the shotgun had been stolen, giving him probable

cause to arrest Harris. Upon arrival at the Dollar Store just down the road from

Harris’s residence, another deputy pointed Harris out to Daniels, who then

proceeded toward Harris and read him a Miranda warning in order to question him

about the suspected stolen shotgun. After reading Harris his rights, Daniels

arrested him for receiving stolen property, a violation of state law. Harris was later

convicted on the charge.

       A magistrate issued a report finding that, assuming arguendo that the

affidavit on its face was insufficient to support probable cause, the officers,

especially in light of their detailed discussion with the issuing magistrate, relied in

good faith on the search warrant’s probable cause determination, making the search

legal. As to the plain view seizure of the guns, the court found that the officers

were authorized to seize the guns because, armed with undisputed evidence that

Harris was a convicted felon, the guns were immediately incriminating. It further

found that the officers were authorized to open the closet door to search for hidden

drugs. Thus, it was recommended that the motion to suppress be denied.

       Harris objected to the report, first arguing that it failed to take into account


       1
        National Crime Information Center. NCIC is a computerized index of criminal justice
information operated by the FBI.

                                             12
the separate and distinct theories for invalidating the warrant. Specifically, Harris

argued that the magistrate did not sufficiently address his argument that no

controlled buy took place, and, therefore, that the affidavit for the search warrant

was deliberately misleading, rendering the search warrant void. Harris then

reiterated his argument that the good faith exception did not apply in this case.

Next, Harris argued that, because the officers could not legally be in his residence,

the plain view doctrine was inapplicable. In any event, he argued that the officers

exceeded the scope of the warrant by searching for stolen property, and that the

incriminating nature of the guns was not immediately apparent until after the guns

were seized and the serial numbers run. Harris stated that, had the officers truly

believed that he was a convicted felon, it should have been included in the warrant,

and then the guns could have been seized as evidence of a federal crime without

having to run the serial numbers through NCIC.

      The district court, after reviewing the report and the objections, adopted the

magistrate’s report and overruled Harris’s objections. Harris then entered a

conditional plea of guilty, reserving his right to appeal the motion to suppress and

withdraw his plea if he prevailed on appeal. The court accepted the plea

agreement, and later sentenced Harris to 28 months’ imprisonment.

      On appeal, Harris argues that the “bare bones” affidavit submitted by law



                                          13
enforcement in this case failed to establish the veracity, reliability, and basis of

knowledge of the informant who supplied information regarding drug activities at

Harris’s residence. Furthermore, he argues that the Leon good faith exception does

not apply because in this case (1) the affidavit supporting the warrant was so

lacking in any indicia of probable cause that official belief in its existence was

entirely unreasonable; (2) law enforcement was reckless in preparing the affidavit;

and (3) the magistrate was misled by information that law enforcement knew was

false or in reckless disregard of the truth. Specifically, Harris argues, as he did

below, that the “controlled purchase” referred to in the affidavit for a warrant was

not actually controlled, making the statement false. Harris also argues that the

search warrant in this case was illegally issued because it was based on an

intentional misrepresentation regarding the controlled purchase of drugs in

violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978).

                  I. The Probable Cause Affidavit and Warrant

      “A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We accept the district court’s findings of fact to be true, unless shown to be clearly

erroneous, and review the district court’s application of the law to those facts



                                           14
de novo. Id. “[A]ll facts are construed in the light most favorable to the prevailing

party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

“The individual challenging the search has the burdens of proof and persuasion.”

United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).

      The Fourth Amendment provides for the right to be free of unreasonable

searches and seizures, and mandates that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.”         U.S. Const. amend. IV.

“Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999) (citation omitted). Furthermore, probable cause

“is a fluid concept--turning on the assessment of probabilities in particular factual

contexts[.]” Id. citing Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329,

76 L.Ed.2d 527 (1983). This Court affords “great deference” to a lower court’s

determination of probable cause. Brundidge, 170 F.3d at 1352.

      As we have noted:

      Under the Gates totality of the circumstances test, the ‘veracity’ and
      ‘basis of knowledge’ prongs . . . for assessing the usefulness of an
      informant’s tips, are not independent. ‘[T]hey are better understood
      as relevant considerations in the totality of the circumstances analysis
      that traditionally has guided probable cause determinations: a
      deficiency in one may be compensated for . . . by a strong showing as

                                         15
      to the other[.]’

Id. at 1352-53. At the outer limits of probable cause determinations involving a

close call, we have held that, in addition to independently corroborating an

informant’s facts, creating circumstances where the informant is unlikely to lie can

also corroborate the informant’s tip. See United States v. Foree, 43 F.3d 1572,

1576-77 (11th Cir. 1995) (upholding search warrant where a substantial basis

supported the magistrate’s finding of probable cause, especially in light of the fact

that “the CI was unlikely to be untruthful, for, if the warrant issued, lies would

likely be discovered in short order and favors falsely curried would dissipate

rapidly.”).

      As for Harris’s Franks challenge to the veracity of Daniels’s statements

regarding a “controlled buy” set forth in the affidavit underlying the search

warrant, we have held that if, after an evidentiary hearing has concluded:

      the allegation of perjury or reckless disregard [of the truth] is
      established by the defendant by a preponderance of the evidence, and,
      with the affidavit’s false material set to one side, the affidavit’s
      remaining content is insufficient to establish probable cause, the
      search warrant must be voided and the fruits of the search excluded to
      the same extent as if probable cause was lacking on the face of the
      affidavit.

United States v. Novaton, 271 F.3d 968, 986 (11th Cir. 2001), citing Franks v.

Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).



                                         16
      Turning     first to   the   issue   of    whether   a   material and   deliberate

misrepresentation was made to the issuing magistrate in violation of Franks,

Harris’s focus is on the statement in the affidavit that there was a “controlled

purchase” made by a CI, something he argues never happened based on the

officers’ testimony presented at the hearing. Specifically, Harris points to the fact

that there was little, if any, control exerted over the buy.         It is true that the

testimony established that there was no video or audio surveillance, and, in fact,

the police were not physically present on the premises, but rather were positioned

in vehicles nearby and none of the officers actually saw or heard the purchase take

place. Furthermore, while the officers in this case provided the CI money to make

the purchase, it was not marked or recovered from Harris’s person or residence.

Moreover, the small bag of drugs purchased by the CI was not dated or marked to

indicate when and where they were retrieved, nor was any analysis done to verify

the substances.

      However, there was also testimony that the CI’s car, person, and girlfriend

were all searched before and after the purchase, and the CI turned over the drugs

very soon after making the purchase. Whatever the shortcomings of the Crenshaw

County Sheriff Department’s “controls” for making controlled purchases, taking

the facts in a light most favorable to the prevailing party, the testimony of Officers



                                            17
White and Daniels demonstrated that they honestly believed that the CI had made a

controlled purchase of drugs from Harris’s residence. White’s testimony was that,

while the preferred method for a controlled buy was to physically watch the CI

make the purchase, it was not possible to do so in this case. Despite the lack of

audio or video surveillance equipment, White still explained that the CI was

monitored (although he did not explain how), which is why the affidavit for the

search warrant mentioned the “controlled purchase.” Daniels’s testimony echoed a

belief that, by searching the informant and his car prior to making the purchase and

providing him the money to buy drugs, the purchase was controlled.

      Taking the facts in a light most favorable to the prevailing party, the

government, it cannot be said that Daniels’s statement in the affidavit that a

“controlled purchase” had taken place constituted a deliberately false statement or

a statement made in reckless disregard of the truth, such as is required for the

affidavit to be set aside under Franks. The fact that the officers’ definition of a

“controlled purchase” is perhaps not as stringent as the one Harris might hope for

does not mean that the officers were deliberately lying when they testified that they

believed the purchase to be a “controlled” one. As such, we conclude that Harris’s

Franks challenge does not warrant a reversal.

      Turning next to the issue of whether the affidavit was sufficient to establish



                                         18
probable cause, it is a close call. The face of the affidavit itself states only that (1)

information was received from an informant within the past 24 hours that drugs

were located and sold in the Harris residence; (2) a controlled purchase had been

made from within the residence; (3) the source had in the past provided

information leading to the recovery of stolen property; and (4) the buy was made

within the past 24 hours in the kitchen of the house. However, the last line of the

affidavit was not even written by Officer Daniels, but rather by the magistrate

judge who issued the warrant. The warrant does not describe in much detail why

the informant was considered reliable, nor does it describe when and what the

informant provided in the way of information that led to the recovery of stolen

property. Furthermore, the details of the “controlled purchase” are left out entirely

until the magistrate himself wrote in the final line, and Daniels does not indicate

that the informant’s information was in any way corroborated. However, we

decline to address whether the warrant in this case lacked probable cause because

assuming, arguendo, that the affidavit failed to establish probable cause on its face,

the testimony at the hearing regarding the discussions between Officer Daniels and

the issuing magistrate are sufficient to establish a good faith reliance on the

warrant, as discussed below.

                        II. The Leon Good Faith Exception



                                           19
      We review “de novo whether the Leon good faith exception to the

exclusionary rule applies to a search, but ‘the underlying facts upon which that

determination is based are binding on appeal unless clearly erroneous.’” United

States v. Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003).

      As we have held, “[e]vidence seized as the result of an illegal search may

not be used by the government in a subsequent criminal prosecution.” United

States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002). “The exclusionary rule, as

it is known, is ‘a judicially created remedy designed to safeguard Fourth

Amendment rights generally through its deterrent effect.’” Id. One exception to

the exclusionary rule is the so-called “good faith” exception set forth by the

Supreme Court in United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420,

82 L.Ed.2d 677 (1984). Martin, 297 F.3d at 1312.

      The Leon exception “stands for the principle that courts generally should not

render inadmissible evidence obtained by police officers acting in reasonable

reliance upon a search warrant that is ultimately found to be unsupported by

probable cause.” Martin, 297 F.3d at 1313. “The Leon good faith exception

requires suppression ‘only if the officers were dishonest or reckless in preparing

their affidavit or could not have harbored an objectively reasonable belief in the

existence of probable cause.’” Id. “The purpose of the exclusionary rule is to deter



                                          20
unlawful police misconduct; therefore, when officers engage in ‘objectively

reasonable law enforcement activity’ and have acted in good faith when obtaining

a search warrant from a judge or magistrate, the Leon good faith exception

applies.” Id. Moreover, we have held that we “can look beyond the four corners

of the affidavit and search warrant to determine whether [the officer] reasonably

relied upon the warrant.” Id. at 1318.

      The Leon exception applies in all but four circumstances, three of which

Harris asserts apply in the present case: (1) where the magistrate or judge in issuing

a warrant was misled by information in an affidavit that the affiant knew was false

or would have known was false except for his reckless disregard of the truth; (2)

where the issuing magistrate wholly abandoned his judicial role; and (3) where the

affidavit supporting the warrant is so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.” Id. at 1313.

      As discussed above, Daniels’s affidavit was not, based on his testimony,

knowingly false, nor can it be said that any alleged falsity would have been known

absent a reckless disregard of the truth. Moreover, while the testimony in this case

outlined an unusual procedure for securing a search warrant, Daniels testified

under oath that the magistrate issuing the warrant in this case previously had

stricken overly detailed information regarding the credibility of informants and



                                           21
instead had detailed conversations with him regarding reliability. This same

magistrate routinely would remove or add lines to affidavits or warrants based on

those conversations. During their conversation, which took place somewhere near

midnight, Daniels told the magistrate about how the CI had provided reliable and

accurate information within the past week regarding the location of stolen property

in another county as well as in Crenshaw County, and that the informant had tipped

him off regarding the sale of drugs and trading of stolen property for drugs at

Harris’s residence. Officer White’s testimony confirmed the details regarding the

CI.

       After hearing these details not specifically outlined in Daniels’s affidavit, the

magistrate added a line about the “controlled purchase” having taken place within

24 hours, presumably because he believed the information was true and provided

him with greater assurance that the probable cause standard had been met. In light

of the detailed questioning done by the magistrate, the evidence taken in a light

most favorable to the government does not show that the magistrate wholly

abandoned his role by issuing the warrant, although his practice for issuing the

warrant seems unorthodox.2 The evidence demonstrated that the magistrate took a



       2
         Harris does not argue that the magistrate abandoned his role or was not neutral, but
rather that the magistrate was misled by Daniels. The argument, therefore, is deemed
abandoned. United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).

                                                22
lot of time to discuss the reliability of the informant and the facts surrounding the

application for the warrant before deciding that an additional line was needed, and

before the warrant should issue. There is simply no evidence that the magistrate

simply rubber-stamped the officers’ application.

      Moreover, the affidavit was not so lacking in any indicia of probable cause

that no reasonable official would rely on the warrant. The warrant itself was based

on information that Daniels believed to be reliable based on his prior dealings with

the informant, and Daniels set up and had knowledge of the “controlled buy” of

drugs from Harris’s residence. Furthermore, the evidence demonstrated a

reasonable reliance on the warrant based on Daniels’s objective (and nearly first-

hand) belief that the informant had purchased drugs from Harris’s residence during

a controlled buy. Based on the informant’s first-hand purchase of the drugs from

Harris’s residence within 24 hours of the warrant’s issuance, it cannot be said that

it was objectively unreasonable for Daniels to believe that there was a “fair

probability” of finding contraband in Harris’s residence. Brundidge, 170 F.3d. at

1352 (“[p]robable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.”); see also Gates, 462 U.S. at 235,

103 S.Ct. at 2330-31 (recognizing that affidavits “are normally drafted by



                                          23
nonlawyers in the midst and haste of a criminal investigation. Technical

requirements of elaborate specificity once exacted under common law pleading

have no proper place in this area.”). Accordingly, the affidavit had more than an

indicia of probable cause and it was not unreasonable for Daniels to rely on the

warrant. Moreover, going beyond the four corners of the affidavit (as we may),

Daniels’s reliance was reasonable given the in-depth discussion of the informant

and the warrant with the magistrate judge, who only issued the warrant after

questioning Daniels extensively on the subject.

      Harris cites to a Sixth Circuit case, United States v. Weaver, 99 F.3d 1372,

1380-81 (6th Cir. 1996), in support of his argument that the Leon exception should

not apply because reliance on the warrant was unreasonable. However, Weaver is

unpersuasive here, as in Weaver, the officer:

      [P]ossessed some information from a previously reliable informant
      regarding possible criminal activities but 1) possessed no prior
      personal knowledge of any unlawful activity by this suspect, or at the
      suspect residence, other than an old conviction on completely
      unrelated circumstances; 2) possessed no present personal knowledge
      of any connection between this suspect and marijuana possession or
      distribution; 3) had not personally seen any marijuana at the suspect
      residence nor conducted any visual reconnaissance of the property to
      determine whether marijuana was likely to be present on the property;
      and 4) possessed only third-party hearsay information about a possible
      marijuana grow operation on the property.

Weaver, 99 F.3d at 1380. On the basis of these facts, the court concluded that the



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officer, with “little firsthand information and no personal observations . . . should

have realized that he needed to do more independent investigative work to show a

fair probability that this suspect was either possessing, distributing, or growing

marijuana.” Id.

      In the present case, however, Daniels, according to his testimony, did not

rely on just the information of the informant. Instead, Daniels conducted a drive-

by of the residence with the informant to confirm the location, and then set up a

controlled purchase in which the informant would buy drugs at the location. Only

after the informant had successfully obtained drugs, which Daniels took into

evidence, did he attempt to get a search warrant for Harris’s residence. This was

not a case where Daniels simply took an informant’s word at face value, but rather

required the informant to successfully conduct a controlled buy to verify the

information prior to securing a warrant.

      Thus, unlike in Weaver, Daniels sought some corroboration of the

informant’s tip about drug sales at Harris’s residence, and used that information,

however inartfully described and expressed in the affidavit, to secure a warrant.

Taken in a light most favorable to the government, Daniels did corroborate the

information originally provided by the informant by setting up a controlled buy.

      In conclusion, while the affidavit in this case may have lacked sufficient



                                           25
indicia of the informant’s reliability on its face, and the controlled buy left

something to be desired, we conclude that the evidence, taken in a light most

favorable to the government, supports the conclusion that Daniels was not

dishonest or recklessly disregarding truth when he asserted that a controlled buy

had taken place, did not deliberately mislead the magistrate (who also did not

abandon his role), and Daniels’s belief that probable cause existed was not so

objectively unreasonable as to warrant exclusion of the seized evidence in light of

Leon’s good faith exception. We, therefore, find no reversible error and affirm.

      AFFIRMED.




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