UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. COREY SHAMON MCKINNEY, a/k/a Corey Shannon McKinney, Defendant - Appellant. No. 21-5074 (D.C. No. 4:20-CR -00019-CVE-1) (N.D. Okla.)

ORDER AND JUDGMENT *

Before MORITZ, SEYMOUR, and EBEL, Circuit Judges.
Defendant Corey Shamon McKinney was ch arged with federal firearm and drug offenses. He moved to suppress evidence recove red during two searches at his residence. The related search warrants were supporte d by officer affidavits that included information obtained from a reliable confidentia l informant (“RCI”). After the district court denied his motion to suppress, he wa s convicted and sentenced to one hundred thirty-seven months in prison. On appeal, defendant asserts a claim under Franks v. Delaware , 438 U.S. 154 (1978), contending that th e affidavits are contradicted by the

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 5, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 12 officer’s testimony at trial and that the ev idence recovered from the searches should be suppressed. For the reasons set forth below, we affirm. Background In November of 2019, Officer Mike Ca wiezell of the Tulsa Police Department (“TPD”) filed an affidavit seeking a search warrant for defendant’s residence in Tulsa, Oklahoma based on information he received from an RCI. A warrant was issued by a Tulsa County judge and execu ted on November 24, 2019. During the search, law enforcement recovered metham phetamine, marijuana, heroin , two firearms, ammunition, and body armor from the residence. They al so recovered almost six thousand dollars from defendant’s person. He was arre sted but later released on bond. Following a search of a trash container located in front of defendant’s home, Officer Cawiezell sought a second warrant to s earch the residence. Another warrant was issued by a Tulsa County judg e and a second search was co nducted on January 9, 2020. During this search, law enforcem ent recovered what appeared to be a firearm silencer and marijuana. Defendant was indicted in federal court on eight counts, including charges for being a felon in possession; possessing an unregistered silencer; possessing heroin, methamphetamine, and marijuana with intent to distribute; maintaining a drug-involved premises; and possessing a firearm in furthera nce of drug trafficking crimes. He sought to suppress the eviden ce obtained from both sear ches, challenging th e reliability of the RCI. Without holding an evidentiary hearing, the district court found that Officer Cawiezell’s affidavits established probable cause and denied defendant’s motion to Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 23 suppress. He opted to go to trial, and the jury found him guilty on all eight counts. He was sentenced to a total of one hundred thirty-seven months in prison followed by three years of supervised release.
Search Warrant Affidavits Officer Cawiezell prepared swor n affidavits in s upport of both search warrants. The first affidavit stated that Officer Cawiezell was contacted by the RCI concerning an individual, later identified as defendant, who was “selling a large amount of methamphetamine and posse ssing firearms in the Tulsa Count y area.” Rec., vol. I at 156. Officer Cawiezell stated that the RCI “informed [him] th at Corey McKinney was in possession of methamphetamine, heroin, and a firearm” at his residence. Id. at 157. He also stated that the RCI “inf ormed [him] that Core y McKinney had recentl y within the past 72 hours acquired a large amount of methamphetamine, and th at it was currently being stored at his residence.” Id. Officer Cawiezell represented that th is RCI had provided reliable information to the TP D on more than three prior oc casions, includi ng information that led to arrests for drug offens es and seizures of firearms. The second affidavit in cluded much of the information fr om the first affidavit. In addition, it detailed the first search and the contraband recovere d. Officer Cawiezell described the trash sear ch which led to the di scovery of two items, one with trace amounts of marijuana and another “consiste nt with packaging narcotics.” Id. at 159. He also stated that, after this evidence was taken back to the police department, a K9 “gave a positive alert to the presence of narcotics.” Id. Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 34 Officer Cawiezell’s Trial Testimony At trial, defense counsel cross-examined Officer Cawiez ell. Counsel asked about the two firearms, a rifle and a pistol, recovered from defendant’s residence: Q. You never saw him with that rifle, did you?
A. Correct. Q. No one ever told you they saw with him that rifle; correct?
A. Correct.

. . . . Q. You never saw him w ith the pistol, did you? A. I did not. Q. No one has ever told you they saw him with the pistol either, have they? A. They have not. Rec., vol. III at 129–30. Defense counsel also asked the officer questions about the methamphetamine recovered during the search: Q. And you don’t know whether the methamphetam ine was in the residence before Mr. McKi nney was there, do you? A. I do not.

. . . . Q. You’ve never seen him with any methamphetamine, have you? A. I have not. Q. He had none on his body wh en you arrested him, did he? A. He did not. Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 45 Q. You’ve never seen any photog raphs of Mr. McKinney with any methamphetamine, have you? A. I have not. Q. So you don’t know if Mr. Mc Kinney ever laid eyes on that methamphetamine, do you? A. I do not. Id. at 131–32. Defense counsel asked the o fficer similar questions about the heroin recovered from defendant’s residence: Q. And you never saw him with the heroin, did you?
A. Correct. Q. And no one has ever told you that they ever saw him with any heroin, have they?
A. No. Id. at 138. Officer Cawiezell was not ques tioned, and did not testify, about the RCI or the affidavits.
Standard of Review Defendant did not assert a Franks claim in district court. However, the parties agree that his claim is not waived under Fed. R. Crim. P. 12(b) be cause it is ba sed on Officer Cawiezell’s trial testimony and was not “r easonably available” before trial. See Fed. R. Crim. P. 12(b)(3). Accordingly, we review his claim fo r plain error. See United States v. Iiland , 254 F.3d 1264, 1267 n.1 (10th Cir. 2001). Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 56 Discussion On appeal, defendant alleges a Fourth Amendment violation under Franks . A Franks violation occurs if “(1) an officer’s affidavit supporting a search warrant application contains a reckless misstatement or omission that (2) is material because, but for it, the warrant could not have lawfully issued.” United States v. Herrera , 782 F.3d 571, 573 (10th Cir. 2015). The defendant must prove both recklessness and materiality to obtain relief. United States v. Moses , 965 F.3d 1106, 1110 (10th Cir. 2020). A defendant is entitled to an evidentiary hearing if he makes a “substantial preliminary showing” that a violation has occurred. Id. (quoting Franks , 438 U.S. at 155). To make the requisite showing of re cklessness, a defendant must furnish evidence “that the officer in fact entertained serious doubts as to the truth of his allegations.” United States v. Xiang , 12 F.4th 1176, 1182–83 (10th Ci r. 2021) (internal quotation marks and citation omitted). In other words, a defendant must show th at the officer acted with “deliberate falsehood or [] re ckless disregard for the truth.” Franks , 438 U.S. at 171. “Allegations of negligence or innocent mistake are insufficient.” Id.
A. Suppression of the Evidence Defendant argues that the evidence rec overed during both searches should be suppressed because Officer Cawiezell’s trial te stimony is inconsistent with statements Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 67 made in his affidavits. 1 According to defendant, th e testimony shows that Officer Cawiezell made material and reckless mi sstatements in the affidavits. Specifically, defendant highlights three statements from Officer Cawiezell’s testimony: (1) no one told hi m they saw defendant with th e rifle or pistol recovered during the first search; (2) no one told him they saw defe ndant with “any heroin”; and (3) he did not know whether the methamphet amine recovered in th e search was at the residence before defendant was there or if defendant had ever seen that methamphetamine. Defendant argues this te stimony contradicts affidavit statements about what the RCI told Officer Cawiezell, particularly that: (1) defendant was in possession of a firearm; (2) defendant was in possession of heroin; and (3) defendant had recently acquired a large amount of methamphetami ne and was storing it at his residence. These arguments fail because the trial testimony does not contradict the affidavit statements. First, the affidav its do not state that the RCI saw defendant with a firearm, the methamphetamine, or the heroin. It can be true that the RCI told Officer Cawiezell that defendant was in possession of a firear m and drugs without saying he or she saw defendant with these items. Fo r example, the RCI may have be en told by defendant or a

1 Defendant primarily challenges the first affi davit. While he acknowledges that the second affidavit includes relevant informa tion not supplied by the RCI, he argues that information would not have been available but for the illegal fi rst search. He thus asserts that evidence found in the second search is fruit of the poisonous tree. He also argues that the good-faith exception under United States v. Leon , 468 U.S. 897 (1984), does not apply. Because we conclude that defend ant has failed to demonstrate a Fourth Amendment violation, we n eed not reach these issues. Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 78 third party that defendant had possession of them . It is also possibl e that the RCI did not disclose the source of the informa tion to Officer Cawiezell at all. Moreover, the affidavits only state that Officer Cawiezell was informed defendant was in possession of “a firearm,” not the speci fic firearms recovered in the search. Similarly, the questioning at trial concerne d the specific methamphetamine recovered during the search whereas the affidavits referenced undefined methamphetamine. Importantly, the RCI provided O fficer Cawiezell with inform ation before the searches were conducted. It would have been difficult, if not impossi ble, for Officer Cawiezell to know with certainty whether the contraband recovered from defendant’s home was the same contraband that the RCI informed him of. Finally, it can be simultaneously true th at: (1) the RCI told Officer Cawiezell defendant had recently acquired methamphet amine; and (2) Officer Cawiezell did not know when the metham phetamine entered the home or wh ether defendant had seen it. Whether the methamphetamine wa s at the residence before defendant arrived there or whether defendant saw the meth amphetamine is not dispositive of whether he had actual or constructive possession of it. In his reply brief, defendant argues that if the RCI did not see him with the firearms or drugs then Officer Cawiezell re cklessly omitted that information from the affidavits. Because he did not raise this ar gument in his opening br ief, it is forfeited. See United States v. Leffler , 942 F.3d 1192, 1197 (10th Cir. 2019). In any event, this argument is unpersuasive becaus e the affidavit is facially ambi guous as to the basis of the RCI’s knowledge. Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 89 Furthermore, probable cause may properly be supported by hear say or information supplied by an informant. See Franks , 438 U.S. at 165. Courts take a “totality of the circumstances” approach when making a pr obable cause determination based on an informant’s tip. United States v. Hendrix , 664 F.3d 1334, 1338 (10th Cir. 2011). Relevant factors include “the informant’s ve racity, reliability, and basis of knowledge.” Id. “[A] deficiency in one factor may be co mpensated for by a strong showing of another or by other indicia of reliability.” United States v. Quezada-Enriquez , 567 F.3d 1228, 1233 (10th Cir. 2009). Here, ev en if the basis of the RCI’s information was not clear or was in some way lacking, it was bolstered by the RCI’s documented history of providing the TPD with reliable information. 2 To the extent any tension could be found between the testimony and the affidavits, defendant has not provided any evidence to pr ove that the sworn affidavits, rather than the sworn testimony, were false. He has also not offered any evidence that Officer Cawiezell “entertained serious doubts,” see Xiang , 12 F.4th at 1182–83, or acted with “deliberate falsehood or [] reck less disregard for the truth,” see Franks , 438 U.S. at 171. Defendant merely assumes Officer Cawiez ell’s sworn trial testimony is true and concludes that the officer was “either lying or recklessly mischaracterizing the supposed interactions that he had with the informant in his affidavits .” Aplt. Br. at 12. Such conclusory allegations are insu fficient because search warrant affidavits are presumed to be valid. See Franks , 438 U.S. at 171.

2 The district court rejected the challenges made to the RCI’s relia bility in defendant’s motion to suppress. Those findings have not b een appealed and are not before this court. Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 910 In his reply, defendant argues that the importance of the RC I’s information in establishing probable cause, the depth of Officer Cawiezell’s involvement in the investigation, and “the degree of inconsis tency” between the statements demonstrate recklessness or intent. Reply Br. at 6–7. Th ese arguments are forfeited, but in any event we find them unpersuasive, particularly b ecause we could not find any inconsistency among the statements, much less a significant one. Finally, it bears noting that Officer Cawie zell was not asked about the RCI or the affidavits at trial. Rather, the challe nged testimony was give n in the context of determining whether defendant ha d exclusive or actual control over the contraband seized during the searches. Even if the alleged inco nsistencies existed, it would not make sense to credit the trial testimony over direct and sworn statements made about the RCI in the affidavits. Any inconsiste ncy would be more readily explained by a negligent or innocent error made at trial than by a choice to submit an affidavit despite serious doubts about its truthfulness.
B. Franks Hearing In the alternative, defendant argues he is entitled to a hearing to determine whether there has been a Franks violation even though he did no t request a hearing in district court. The parties dispute whether the failure of a district court to hold a Franks hearing sua sponte could be plain error. Compare Franks , 438 U.S. at 168 (contemplating “an instance of deliberate falsity” exposed at trial), and United States v. White , 850 F.3d 667, 673 (4th Cir. 2017) (holding that a defendant may seek a Franks hearing based on inconsistencies between an affidavit and the affiant’s trial testimony), with United States Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 1011 v. Rusnak , 981 F.3d 697, 705 (9th Cir. 2020) (hol ding error could not be plain due to a lack of caselaw applying Franks in this context). But we need not reach this question because defendant is not entitled to a hearing. As described above, defendant has failed to allege that actual inconsistencies between Officer Cawiezell’s trial testimony and hi s affidavits exist. To the extent that the relevant statements are in tension, defe ndant has failed to prov ide any evidence that Officer Cawiezell intentionally or recklessly filed untruthful or incomplete affidavits. At most, defendant has demonstrated that Offi cer Cawiezell’s testimo ny should have been clarified at trial.
Conclusion Based on the foregoing, we are not persua ded that defendant’s Fourth Amendment rights have been violated or that he is entitled to an eviden tiary hearing under Franks

. Accordingly, we affirm.

Entered for the Court Stephanie K. Seymour Circuit Judge Appellate Case: 21-5074 Document: 010110793326 Date Filed: 01/05/2023 Page: 11