U.S. v. Frazier
| Citation | 423 F.3d 526 |
| Decision Date | 06 September 2005 |
| Docket Number | No. 04-5719.,04-5719. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Christopher FRAZIER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Jennifer S. Roach, Thompson Hine, Cleveland, Ohio, for Appellant. Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Jennifer S. Roach, Thomas L. Feher, Thompson Hine, Cleveland, Ohio, for Appellant. Terry M. Cushing, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.
Before: SUHRHEINRICH, BATCHELDER, and GIBSON, Circuit Judges.*
Defendant-Appellant Christopher Frazier appeals the district court's denial of his motion to suppress evidence obtained during a search of his residence at 115 South Jeffries Street, Morganfield, Kentucky. Alternatively, Frazier argues that we should remand this case to the district court, with instructions to hold an evidentiary hearing to determine whether the affidavit supporting the search warrant for his home contained knowing and reckless falsehoods, and that we should grant him a new trial because his counsel was constitutionally ineffective. Because we conclude that the district court did not err in applying the good faith exception set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), we will AFFIRM the district court's order denying Frazier's motion to suppress. Further, we will DENY his request for an evidentiary hearing, and dismiss without prejudice his claim of ineffective assistance of counsel.
In late 1999, numerous police agencies, including the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), began receiving information that an informal organization of about 25 people, led by Frazier, was dealing drugs in the Dunbar Heights Apartments, a federal housing project in Morganfield. In October of 2002, a confidential informant, "CI-178," volunteered to provide the authorities with information on Frazier's organization and began making "controlled buys" of drugs under the supervision of ATF Special Agent Kirk Steward. Because CI-178 wore a "wire" during some of the buys, the ATF was able to record what was said during two of the transactions. On one such occasion, CI-178 met with Czaja McGuire, who is alleged to be a member of Frazier's conspiracy, to purchase crack cocaine. CI-178 accompanied McGuire to Frazier's residence, which at that point was at 759 Culver Court in the housing project, where McGuire obtained a quantity
of crack cocaine. After they left Frazier's residence, CI-178 purchased 3.7 grams of crack cocaine from McGuire. The second recorded transaction occurred on December 12, 2002, when CI-178 went to Frazier's Culver Court residence to purchase crack cocaine. Once inside, Frazier arranged for CI-178 to buy drugs from James Harris, another member of Frazier's organization.
On July 10, 2003, seeking six search warrants relating to Frazier's drug conspiracy, Agent Steward presented to United States Magistrate Judge Robert Goebel six warrant affidavits, the last of which was in support of a warrant to search Frazier's current home on Jeffries Street. This affidavit describes the details of Frazier's criminal enterprise and recounts the report of an anonymous cooperating witness, "CW-1," who had seen Frazier selling drugs out of the housing project in Morganfield. The Frazier affidavit also described the McGuire and Harris transactions, but did not specify that these were controlled buys that were caught on tape. The affidavit further states that CI-178 had acted as a "middle man" during a drug transaction between Frazier and an unidentified Hispanic male1 at Frazier's Culver Court residence. Paragraph nine of the Frazier affidavit says that Frazier was evicted from the Culver Court residence in May 2003, and that shortly thereafter, housing authorities found drugs in that residence while cleaning it. The affidavit also states that Sheriff's Deputy Jason Corbitt relayed to Agent Steward the statement of Patrick Black, a Frazier associate arrested in a seemingly unrelated investigation, that Black had been regularly purchasing about two pounds of marijuana each week from Frazier in the neighboring town of Owensboro, Kentucky. The affidavit also reports that Agent Steward had obtained Frazier's telephone records, which revealed that he was in "constant contact with known drug dealers" and that officers doing surveillance of Frazier's Jeffries Street residence saw him coming and going in an expensive vehicle.
After reviewing the five affidavits submitted before the Frazier affidavit, the magistrate judge advised Agent Steward that the affidavits should be revised to include the information that CI-178 had taped two of the controlled buys. Agent Steward made that revision to each of the first five affidavits but inexplicably—and unintentionally—did not supplement the Frazier affidavit. On reviewing the Frazier affidavit, the magistrate, who did not realize that it did not contain the information about the taped buys, instructed Agent Steward to "strengthen" paragraph 17, which cited Sixth Circuit cases in support of the proposition that "a search warrant may be properly issued against a suspected drug dealer's residence despite the lack of direct evidence of criminal activity at the residence." Agent Steward added a citation to United States v. Jones, 159 F.3d 969 (6th Cir.1998) () but made no further changes to the affidavit. Hence, the final draft of the Frazier affidavit describes the McGuire and Harris transactions, but does not specify that CI-178 was wearing a wire and recorded them. Apparently unaware that Agent Steward had not made all of the requested changes, the magistrate judge issued a warrant to search Frazier's house, which ultimately resulted in the seizure of marijuana and firearms.
Reserving his right to appeal the district court's denial of his motion to suppress evidence pursuant to FED R. CRIM. P.
11(a)(2), Frazier pled guilty to possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and possessing firearms in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(a). Frazier moved to suppress the evidence seized from his house on the ground that the warrant was not supported by probable cause. The district court initially agreed and, relying exclusively on the information contained in the four corners of the warrant affidavit, held that the warrant could not be saved under the "good faith" exception to the exclusionary rule that was announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The United States moved to reconsider, arguing that the court should consider facts known by Agent Steward, which did not appear in the affidavit, as evidence of Agent Steward's good faith. After an evidentiary hearing in which Agent Steward testified that he provided to the issuing magistrate the information that CI-178 had taped two drug transactions in which Frazier had participated, the district court denied Frazier's motion to suppress because Agent Steward relied in good faith on a deficient search warrant. Frazier timely appealed.
The United States argues that we should affirm the district court because the affidavit established that there was probable cause to search Frazier's home. In appeals from a district court's ruling on a motion to suppress evidence, we review the trial court's factual findings for clear error and its legal conclusions de novo. United States v. Combs, 369 F.3d 925, 937 (6th Cir.2004). A finding of probable cause is a legal conclusion that we review de novo. United States v. Padro, 52 F.3d 120, 122 (6th Cir.1995). The evidence must be viewed in a light most likely to support the decision of the district court. United States v. Heath, 259 F.3d 522, 528 (6th Cir.2001).
The Fourth Amendment states that "no warrants shall issue but upon probable cause, supported by oath or affirmation ...." U.S. Const. amend. IV. To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate "a fair probability that evidence of a crime will be located on the premises of the proposed search." United States v. Jenkins, 396 F.3d 751, 760 (6th Cir.2005) (quoting United States v. Bowling, 900 F.2d 926, 930 (6th Cir.1990)). This conclusion depends on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The probable cause standard is a "practical, non-technical conception" that deals with the "factual and practical considerations of everyday life." Id. at 231, 103 S.Ct. 2317. Because our review of the sufficiency of the evidence supporting probable cause is limited to the information presented in the four-corners of the affidavit, Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) abrogated on other grounds by Gates, 462 U.S. at 238, 103 S.Ct. 2317; United States v. Hatcher, 473 F.2d 321, 324 (6th Cir.1973), we may not consider in this analysis Agent Steward's testimony that CI-178 recorded the transactions.2
The bulk of the information contained in the Frazier affidavit comes from confidential sources: CW-1 and CI-178. When confronted with hearsay information from a confidential informant, "a court must consider the veracity, reliability, and the basis of knowledge for that information as part of the totality of the circumstances for evaluating the impact of that information...." United States v. Helton, 314...
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