UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4146

JAMES DEJESUS PENN,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(CR-01-209)

Submitted: January 29, 2003

Decided: February 21, 2003

Before WILKINS, Chief Judge, and NIEMEYER and

MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

George Harper, Upper Marlboro, Maryland, for Appellant. Thomas

M. DiBiagio, United States Attorney, Daphene R. McFerren, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

James Dejesus Penn appeals his conviction for possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1)

(2000) (count one), and possession with intent to distribute marijuana

in violation of 21 U.S.C. § 841(a)(1) (2000) (count two). Finding no

reversible error, we affirm. 

First, Penn argues that the district court erred in denying his motion

to suppress evidence seized from his residence because the search

warrant affidavit lacked probable cause to search, and the good faith

exception to the exclusionary rule did not apply because the executing

officer could not have reasonably relied on the warrant. In the alternative, Penn argues that the good faith exception to the exclusionary

rule under United States v. Leon, 468 U.S. 897 (1984), should be

rejected because it undermines the Fourth Amendment. 

We review a district court’s factual findings underlying a motion

to suppress for clear error, and the district court’s legal determinations

de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); United

States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). When a suppression motion has been denied, we review the evidence in the light most

favorable to the government. See United States v. Seidman, 156 F.3d

542, 547 (4th Cir. 1998). We have reviewed the record and conclude

that the search warrant application established probable cause to

search Penn’s residence. We therefore find it unnecessary to review

Penn’s claim that the good faith exception to the exclusionary rule is

inapplicable. 

Second, Penn contends that the district court erred in denying his

request for a Franks* hearing and erred by refusing to allow him to

call a witness in support of his request for such a hearing. We review

for clear error the factual determinations underlying the denial of such

a motion, and review de novo the legal conclusions. United States v.

Photogrammetric Data Servs., Inc., 259 F.3d 229, 237 (4th Cir.

*Franks v. Delaware, 438 U.S. 154 (1978). 

2 UNITED STATES v. PENN
2001). To be entitled to a hearing on the validity of the search warrant

affidavit, a defendant must "make[ ] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant

affidavit, and . . . the allegedly false statement is necessary to the

finding of probable cause." Franks, 438 U.S. at 155-56. Even if the

affidavit in this case contained intentional misrepresentations, we find

that the alleged misrepresentations were not necessary to the finding

of probable cause. Therefore, the district court did not err by refusing

to hear testimony from a witness regarding the alleged misrepresentations. 

Accordingly, we affirm Penn’s conviction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process. 

AFFIRMED

UNITED STATES v. PENN 3