CA6: Without record references to where the facts are, the court finds the 4A argument waived; counsel blames word limits on briefs

Defendant had waived his challenge to the denial of motions to suppress where he failed to point to any findings in the record demonstrating how the district court erred or why a wiretap application lacked probable cause. Even if defendant had not waived the argument, denial of the motions to suppress was proper where the affidavit underlying the wiretap application for a co-defendant’s phone established probable cause and necessity, probable cause existed for the search of defendant’s residence, and there was no error in denying a Franks hearing. United States v. Young, 2017 U.S. App. LEXIS 1396 (6th Cir. Jan. 26, 2017):

First and foremost, we conclude that Duncan has waived his challenge to the denial of the motions to suppress. Duncan merely cites to the governing rules and relevant case law on Fourth Amendment jurisprudence and wiretap applications, without citations to the record explaining why there was no probable cause. Duncan attempts to provide justification for his perfunctory argument by explaining that the “word limitations of the instant Brief do[] not allow for the parsing of the deficiencies in the 16 authorizations at issue in this appeal.” (Duncan Br. 34.) Duncan then points to the “respective motions [to suppress] in the record” for the “particularized analysis relevant to each application.” (Duncan Br. 34.) Federal Rule of Appellate Procedure 28(a)(8)(A) provides that the argument section of an appellate brief must contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A).

Here, Duncan cites to the parts in the record where the motions to suppress are located, and also to the part where the district court denied them. However, Duncan does not point to any findings in the record which would demonstrate how the district court erred or why the wiretap application lacked probable cause. See United States v. Meda, 812 F.3d 502, 519 (6th Cir. 2015) (holding argument in brief that was not supported by citation need not be addressed by the court pursuant to Federal Rule of Appellate Procedure 28(a)(8)(A)); see also Dog Pound, LLC v. City of Monroe, Mich., 558 F. App’x 589, 594 (6th Cir. 2010) (holding that appellant waived argument on appeal by failing to “advance a single argument as to why the judgment of the district court … was in error,” and the “district court’s reasoning [was not] brought into question.”).

Even if Duncan did not waive this argument, his challenge to the denial of the motions to suppress would still fail because the wiretap application established probable cause that surveillance of Vance’s telephone would reveal communications concerning drug trafficking and necessity for the warrant.