211 F.3d 970 (6th Cir. 2000), 96-6313, US v. Allen

Docket Nº:96-6313
Citation:211 F.3d 970
Party Name:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. KENNETH EUGENE ALLEN, DEFENDANT-APPELLANT.
Case Date:May 04, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 970

211 F.3d 970 (6th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

KENNETH EUGENE ALLEN, DEFENDANT-APPELLANT.

No. 96-6313

UNITED STATES COURT OF Appeals, FOR THE SIXTH CIRCUIT

May 4, 2000

Argued: December 8, 1999

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 96-00023--Curtis L. Collier, District Judge.

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David P. Folmar, Jr., Assistant United States Attorney, Knoxville, Tennessee, Paul W. Laymon, Jr., Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

David Ness, Deirdra J. Brown, Federal Defender Services OF Eastern Tennessee, Inc., Chattanooga, Tennessee, Leah J. Prewitt, Federal Defender Services, Knoxville, Tennessee, for Appellant.

Before: Martin, Chief Judge; Merritt, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, and Gilman, Circuit Judges.

Boggs, J., delivered the opinion of the court, in which Merritt, Ryan, Norris, Suhrheinrich, Siler, Batchelder, and Daughtrey, JJ., joined. Gilman, J. (pp. 976-979), delivered a separate opinion concurring in the judgment, in which Martin, C. J., joined. Clay, J. (pp. 979-988), delivered a separate dissenting opinion, in which Moore and Cole, JJ., joined.

OPINION

Boggs, Circuit Judge.

Kenneth Eugene Allen pled guilty to an indictment charging him with possession of crack cocaine and an illegal firearm, after his motion to suppress evidence seized pursuant to a warrant issued on an allegedly insufficient affidavit was denied by the district court. He appealed that denial. A panel of this court ruled that the affidavit was insufficient to provide probable cause for the warrant, and reversed his conviction. United States v. Allen, 168 F.3d 293 (6th Cir. 1999). We granted a rehearing en banc, and now hold that an affidavit based upon personal observation of criminal activity by a confidential informant who has been named to the magistrate and who, as the affidavit avers, has provided reliable information to the police in the past about criminal activity, though without further specificity as to the type of such activity, can be sufficient for a magistrate to find probable cause to issue a warrant. We affirm the district court's denial of Allen's motion to suppress evidence, and Allen's subsequent conviction.

I.

On October 11, 1995, Detective Gary Lomenick of the Chattanooga Police Department received a tip from a confidential informant ("CI") that a man called Red Dog, residing at 910 North Market Street, was in possession of cocaine. Red Dog was familiar to other officers, though not to Lomenick, as someone known to be involved with drugs, named Kenneth Allen. Based on the CI's information, Lomenick sought and obtained a search warrant that same day. The affidavit read in full as follows:

I, Gary Lomenick, a duly sworn Chattanooga Police Officer, hereby apply for a search warrant and make oath as follows:

1. I am a sworn Chattanooga Police Officer with the Narcotics Division, where I have been assigned for over 15 years, and a commissioned Special Deputy Sheriff for Hamilton County, Tennessee.

2. On the 11th day of October 1995 I Gary Lomenick received information from an informant, a responsible and credible citizen of the county and state, who I know to be a responsible and credible citizen because, I have known said informant for 5 years and said informant has given me information about individuals involved in criminal activity in the past that has proven to be reliable. Said informants's name whom I have this day disclosed to the Judge to whom this application is made, that [sic] John Doe (Alias) Red Dog who resides in or occupies and is in possession of

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the following described premises 910 North Market Street, apartment directly underneath carport located in Chattanooga, Hamilton County Tennessee, unlawfully has in his possession on said premises legend and/or narcotic drugs including Cocaine in violation of law made and provided in such cases.

3. On the 11th day of October 1995 said informant advised me that said informant was on the premises of the said John Doe (Alias) Red Dog located at 910 North Market Street, apartment directly underneath carport within seventy-two hours prior to our conversation on October 11th, 1995 and while there saw Cocaine in possession of the said John Doe (Alias) Red Dog[.]

WHEREFORE, as such officer acting in performance of my duty in the premises I pray that the Court issue a warrant authorizing the search of the said John Doe (Alias) Red Dog and the premises located at 910 North Market Street, apartment directly underneath the carport, for said legend and/or narcotic drugs including Cocaine and that such search be made either by day or by night.

Id. at 296-97.

Lomenick executed the warrant that day, with a team of other officers. When they approached the building, Allen, who was on a porch, saw them and fled inside. The officers gave chase. As Allen ran past a closet, the police heard a loud thump, and shortly thereafter found a 9-mm pistol on the floor of the closet. Allen left a trail of crack cocaine rocks behind him as he fled. When he was apprehended, more rocks of crack were found in his pockets, totaling 9.3 grams in all.

Allen was indicted on March 12, 1996. He was charged with (1) possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841; (2) possession of a firearm in connection with a drug offense, in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). In a motion filed on April 18, 1996, he moved to suppress the evidence as illegally seized, alleging that the indictment was based on an insufficient affidavit, one that did not provide probable cause, since it did not claim or detail any expertise or previous reliability in narcotics contexts on the part of the CI. The district court referred the motion to a magistrate judge for a report and recommendation, which was filed May 15, 1996, and which recommended the motion's denial. This recommendation was adopted by the district court in an order filed May 31, 1996. Allen pled guilty to counts (1) and (2) pursuant to a plea agreement entered on June 14, 1996, and was sentenced to sixteen years and three months in prison. He had reserved his right to appeal, and an appeal to this court ensued.

II.

Our review of the sufficiency of an affidavit underlying a search warrant follows, as it must, the principles laid down by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). There, the Court rejected the rigid tests that had evolved as lower courts attempted to implement earlier Supreme Court decisions, in favor of a "totality of the circumstances" approach. Id. at 230-31 (abandoning the inflexible two-part test developed in the light of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969)). The Court explained its deviation from the earlier approach in this way:

"[V]eracity," "reliability" and "basis of knowledge" are all highly relevant in determining the value of [a CI's] report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case . . . . Rather, . . . they should be understood simply as closely intertwined issues that may usefully illuminate the

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commonsense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place.

Id. at 230.

Gates also guides our deference to the issuing magistrate's determination of probable cause: "line-by-line scrutiny [of an underlying affidavit is] . . . inappropriate in reviewing [a] magistrate['s] decisions." Id. at 246 n.14. The Court emphasized in that case that it had "repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." Id. at 236. It soundly rejected "[a] grudging or negative attitude by reviewing courts toward warrants" Ibid. (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)). Rather, reviewing courts are to accord the magistrate's determination "great deference" Ibid. (quoting Spinelli, 393 U.S. at 419). The Court stressed that a hypertechnical critique of warrants would only, in the end, encourage warrantless searches, undermining the very Fourth Amendment right such an approach would seek to protect. Instead, it reaffirmed the traditional standard:

Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.

Ibid. (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). This circuit has long held that an issuing magistrate's discretion should only be reversed if it was arbitrarily exercised. See United States v. Swihart, 554 F.2d 264, 267-68 (6th Cir. 1977).

The Allen panel examined for guidance three decisions of this court, formulated in the light of Gates. These are: United States v. Pelham, 801 F.2d 875 (1986); United States v. Finch, 998 F.2d 349 (1993); and United States v. Weaver, 99 F.3d 1372 (1996). But as the dissent in Allen pointed out, these cases themselves, particularly the last, would appear to yield an inconsistent standard; the hope was accordingly expressed that this court, sitting en banc, would "clarify the law in this circuit regarding the necessary requirements for the issuance of a search warrant based on uncorroborated information...

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