U.S. v. Helton

Citation314 F.3d 812
Decision Date06 January 2003
Docket NumberNo. 00-2381.,00-2381.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Germaine HELTON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Michael Hluchaniuk (argued and briefed), Assistant United States Attorney, Bay City, MI, for Plaintiff-Appellee.

William T. Street (argued and briefed), Klimaszewski & Street, Saginaw, MI, for Defendant-Appellant.

Before: SILER, COLE, and CLAY, Circuit Judges.

COLE, J., delivered the opinion of the court, in which CLAY, J., joined. SILER, J. (pp. 825-26), delivered a separate dissenting opinion.

OPINION

COLE, Circuit Judge.

Defendant-Appellant, Germaine Helton, pleaded guilty under a conditional plea agreement to one count of possession of crack cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and one count of possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Helton now exercises a right he reserved under the conditional plea agreement by appealing the district court's denial of his motion to suppress cocaine base and firearms, which were seized pursuant to a search warrant. In his appeal, Helton advances three arguments: (1) the search warrant violated the Fourth Amendment because it lacked probable cause and because the good-faith rule articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply here; (2) he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to ascertain whether the false statements in the search warrant affidavit were made with reckless disregard for the truth; and (3) the allegations in the search warrant affidavit were stale and, for that reason, could not validly form the basis for a search warrant. Because there was no probable cause for the search and because the Leon good-faith rule does not apply here, we REVERSE the district court's denial of Helton's suppression motion and REMAND this case for proceedings consistent with this opinion.

I.

On December 2, 1998, a magistrate judge authorized a warrant for the search of several residences in Saginaw, Michigan suspected of having evidence of illegal drug activity. The goal of the search was to gather evidence to extirpate the drug trafficking scheme orchestrated by Derrick "Dino" Peterson, Victoria Swain, and Ruby "Rudy" Liddell. As part of its comprehensiveness, the warrant authorized search of the residence at 723 N. Harrison Street in Saginaw, Michigan, where Helton lived with his girlfriend, Jimmia Green. In a December 3 search of the 723 N. Harrison Street residence, officers seized "$14,310 in cash, suspected crack cocaine, suspected cocaine, suspected marijuana, weapons, ammunition, cellular phones, cassette tapes, photographs, a telephone bill and a check payable to Germaine Helton." Helton sought to suppress that evidence, but the district court denied his request.

Using that evidence, the government indicted Helton on four counts: (1) possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1); (2) possession of marijuana in violation of 21 U.S.C. § 844(a); (3) possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (4) possession of firearms as a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). As part of a plea agreement, Helton pleaded guilty to counts (1) and (3) and the other two counts were dismissed. The plea agreement also preserved Helton's right to appeal the denial of his suppression motion. Helton exercised that right to appeal and we now consider his appeal.

The Basis for the Search Warrant

A twenty-seven page, sixty-four paragraph affidavit by FBI Special Agent Robert Howard formed the basis of the December 2 search warrant. Howard's affidavit relied heavily on information provided directly by a confidential informant referred to as FBI-1, whose track record of providing information has previously resulted in at least three search warrants and sixteen arrests. Howard's affidavit also relied on information that FBI-1 received from an anonymous tipster, FBI-A, who went inside the house at 723 N. Harrison Street and spoke with Jimmia Green.

In all, six allegations in Howard's affidavit served as the basis for the search warrant. The first five allegations relate to Green and/or the residence at 723 N. Harrison Street: (1) based on Howard's investigation, thirty-one telephone calls were made from January to October 1998 between Peterson, Swain, and Liddell and the telephone at 723 N. Harrison Street; (2) according to FBI-A, there were "stacks" of money inside 723 N. Harrison Street in October 1998; (3) according to FBI-A, Green reported storing money for Peterson; (4) also according to FBI-A, Green explained that Peterson wanted her to hold the money because she had no criminal history; and (5) according to FBI-1, the house at 723 N. Harrison was a yellow duplex near the intersection of Harrison and Miller Streets. Specifically, the affidavit in support of the search warrant alleged those five facts through the following paragraphs:

60. Telephone records indicate that between January 6, 1998 and October 29, 1998[,] 28 calls were made from telephones associated with Peterson/Swain and 517.752.0142. That telephone is located at 723 N. Harrison, Saginaw and is listed to Jimmia Green. Between October 31, 1998 and November 3, 1998[,] 3 calls were placed to the telephone at 723 N. Harrison from the residence telephone of Rudy Liddell.

61. In early October 1998[,] FBI-1 advised me that within the prior few days FBI-1 had talked to a person [, FBI-A,] who was personally acquainted with Jimmia Green. That person had told FBI-1 that he/she had been to 723 N. Harrison recently and had seen "stacks" of money in the house. Jimmia Green had told the person [, FBI-A,] the money was Dino Peterson's and Green said Dino stored the money there because she had no criminal record and would not be suspected to be involved in such activity.

62. Based on the above, I submit that there is probable cause to believe that Jimmia Green is trafficking in controlled substances. In my experience[,] people who traffic in illegal drugs normally keep certain items in their residence, including: [u]nknown quantities of controlled substances; documents [that] relate to quantities of drugs possessed and sold, or payments received for drugs sold; proceeds, in cash or other forms, collected from the sale of drugs; customer lists; names, addresses and telephone number[s] of other co-conspirators, photographs of co-conspirators; residence or ownership documents; documents [that] relate to expenditures, travel or banking; pagers or cellular phones and records [that] relate to their use; firearms, ammunition and items associated with the distribution, manufacture, or use of drugs, including scales, packaging material, drug paraphernalia and substances used to dilute or process controlled substances.

63. I am aware that the appearance of 723 N. Harrison, Saginaw, Michigan; is further described as a duplex house, yellow in color located near the intersection of Harrison and Miller Streets. Entrance doors for both units are located on the south side of the residence facing the driveway. The entrance door for 723 is the west-most door located the furthest from Harrison Street. The numerals "723" are clearly marked on the front of the unit in black numbers.

64. Therefore[,] I submit there is probable cause to believe that there is currently located on the premises of 723 N. Harrison, Saginaw, Michigan... evidence of a violation of Title 21, United States Code, sections 841(a)(1) and 846.

The sixth allegation relates to Peterson's drug dealing operation. According to FBI-1, when Peterson dealt drugs in Saginaw, he stored some of the drug-trafficking proceeds in Saginaw with his brother and his brother's girlfriend:

50. In August of 1998[,] FBI-1 further advised that Peterson comes to the Saginaw area periodically and distributes cocaine to various individuals. Money that is collected from the sales of that cocaine is given to Peterson's brother, Michael Peterson, who stores the money at the residence of one of Michael Peterson's girlfriends, Connie Lorkowski, who lives at 504 Tradewinds, Essexville, Michigan. Occasionally cocaine is also stored at the Lorkowski residence. Lorkowski obtains cocaine from Mike Peterson and then she sells the cocaine at Hooters Restaurant in Bay City where she works. Lorkowski hides cocaine in the toilet tank at her residence.

Conspicuously absent from paragraph 50 is any mention that Peterson stored money with persons other than his brother or his brother's girlfriend, such as Green or Helton. In short, based on those six allegations, and without further corroboration, a magistrate judge authorized the search of the 723 N. Harrison Street residence.

The District Court's Treatment of Helton's Suppression Motion

At the district court level, Helton raised three challenges to the search of his residence. First, he argued that there was not probable cause for the search because the anonymous tipster, FBI-A, was not a proven, reliable or credible source. Second, Helton submitted an affidavit by Jimmia Green, which attacked the veracity of paragraph 61 of the Howard affidavit. In her affidavit, Green denied having "stacks" of money at 723 N. Harrison Street, but admitted to having a criminal record. Based on those averments, which called portions of paragraph 61 into question, Helton sought a Franks hearing to strike portions of that paragraph. Third, in oral argument before the magistrate judge, Helton's counsel raised staleness concerns.1 He argued that the Howard affidavit's allegations were stale because the reference to "stacks" of money was based on an observation in ...

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