430 F.3d 345 (6th Cir. 2005), 03-1451, United States v. Davis

Docket Nº:03-1451, 03-1621.
Citation:430 F.3d 345
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kevin DAVIS and Keith Presley, Defendants-Appellants.
Case Date:November 22, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 345

430 F.3d 345 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin DAVIS and Keith Presley, Defendants-Appellants.

Nos. 03-1451, 03-1621.

United States Court of Appeals, Sixth Circuit.

November 22, 2005

Argued: March 8, 2005

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 00-80756—Avern Cohn, District Judge.

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COUNSEL

ARGUED:

N.C. Deday LaRene, LaRENE & KRIGER, Detroit, Michigan, Richard J. Amberg, Keego Harbor, Michigan, for Appellants.

Jennifer J. Peregord, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

ON BRIEF:

N.C. Deday LaRene, LaRENE & KRIGER, Detroit, Michigan, Richard J. Amberg, Keego Harbor, Michigan, for Appellants.

Jennifer J. Peregord, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Before: MOORE and SUTTON, Circuit Judges; CARMAN, Judge.[*]

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendants-Appellants Kevin Davis ("Davis") and Keith Presley ("Presley") were convicted of various drug and money-laundering offenses. On appeal Davis asserts that: (1) the district court erred in denying his motion to suppress certain evidence seized during searches of his vehicle, his home, and a storage locker; (2) the district court erred in refusing to allow him to cross-examine a government witness regarding an outstanding criminal charge; and (3) the district court erred in imposing consecutive sentences for each count on which Davis was convicted. Presley argues on appeal that there was insufficient evidence to sustain his conviction for conspiracy to launder money. Both defendants allege that: (1) their sentences violate the Sixth Amendment in light of the Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005); (2) the district court erred in imposing a role-in-the-offense sentence enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3B1.1; and (3) the district court improperly calculated the drug quantity attributable to each defendant for sentencing purposes.

Upon review, we conclude that the seizure of Davis's vehicle violated the Fourth Amendment. Therefore, the order of the district court denying Davis's motion to suppress evidence seized from the car is REVERSED, and we REMAND the case for further proceedings consistent with this opinion. We AFFIRM Presley's conviction. Finally, we VACATE both Presley's and Davis's sentences and REMAND

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the cases to the district court for resentencing in light of Booker.

I. ANALYSIS

A. Factual History

Beginning in October 1998, the federal Drug Enforcement Agency ("DEA") began investigating a group of drug traffickers operating between Chicago, Illinois, and the Detroit, Michigan, area. The individuals under investigation included Sidney Zanders, suspected by police of operating a large narcotics trafficking operation in the Detroit area, and Presley, believed by the DEA to be one of Zanders's cocaine suppliers in Chicago. As part of the DEA's investigation, Cook County investigators began to conduct surveillance of Presley.

On December 30, 1998, Cook County investigators observed Presley meeting with a man named Christopher Trammel ("Trammel"). The investigators stopped Trammel after the meeting and recovered thirty kilograms of cocaine. That same day, investigators observed Presley meeting with two other men. The two men were then stopped and investigators found an additional sixty-five kilograms of cocaine in the men's possession. As a result of these seizures, Cook County investigators executed a search warrant on a building in South Holland, Illinois, to which Presley was linked. In the building, investigators discovered what was deemed "a repackaging plant for narcotics." Joint Appendix ("J.A.") at 1100 (Mot. to Suppress Tr. at 67). The investigators found, inter alia, cutting agents, presses capable of pressing one-kilogram packages, empty economy-size laundry detergent boxes, and mounds of detergent. Then on approximately March 1, 1999, investigators observed Presley meeting with a woman named Holly Baskin-Spears ("Baskin-Spears") in Chicago. Investigators had observed Presley meeting with her before. After the meeting, the investigators stopped Baskin-Spears and discovered thirty-eight kilograms of cocaine in her vehicle.

On April 29, 1999, Cook County investigators followed a red Corvette, known to be Presley's, and a Range Rover with a Michigan license plate, to an Olympia Fields, Illinois, residential address. The investigators later learned that Davis was the driver of the Range Rover. Once at the residence, the investigators observed Presley conversing with a man they later learned was Davis in the driveway, though they could not hear what was being discussed. At the time, Cook County investigators had had no previous encounters with Davis and did not know who Davis was. The investigators also observed two Tide detergent boxes near the Range Rover. Both men left the house and drove separately, Davis in the Range Rover and Presley in the red Corvette, east on Interstate 94 into Indiana. The Corvette sped up and the investigators lost sight of the car, while other Cook County investigators continued to follow the Range Rover.

Cook County investigators notified Indiana State Troopers of their suspicion that the Range Rover was carrying contraband, and shortly after Davis crossed into Indiana at approximately 6:45 p.m., an Indiana State Trooper stopped Davis for speeding. Soon after Davis was stopped, the Cook County investigators who had been following Davis arrived on the scene. The investigators informed the trooper that they believed Davis was carrying narcotics in his vehicle. The Indiana trooper approached the Range Rover and asked Davis for his driver's license and car registration, which Davis gave to the trooper. The trooper then issued Davis a warning for speeding and asked whether Davis would consent to a search of his vehicle.

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Davis refused and asked whether he was free to leave. The trooper informed Davis that his Range Rover could not be moved, as the police were waiting for a drug-sniffing dog to be brought to the scene. The trooper offered, however, to give Davis a ride to the next service station on the highway. Davis declined the trooper's offer. Davis remained in the Range Rover throughout the stop and made several telephone calls on his cellular phone during the stop.

At approximately 7:00 p.m., Lake Station, Indiana, Canine Supervisor Tim Craigin ("Officer Craigin") was notified that a drug-sniffing dog was needed at the location. Officer Craigin arrived on the scene with his dog Rocky at approximately 7:15 p.m. Upon his arrival, Officer Craigin spoke with the officers on the scene and then walked Rocky around Davis's Range Rover. While Rocky showed some interest in the rear hatch area of the vehicle, Rocky did not alert positively to the presence of narcotics in the vehicle. Officer Craigin then placed Rocky back into his vehicle at approximately 7:30 p.m. and advised investigating police of the results of the search.

At approximately 7:20 p.m., DEA Special Agent Vince Balbo ("Agent Balbo") arrived on the scene and took charge of the investigation. From the record it is unclear whether Agent Balbo was aware of the fact that a drug-sniffing dog had already been used to search Davis's vehicle. Nonetheless, Agent Balbo contacted a neighboring county, Lake County, Indiana, to request that a drug-sniffing dog be sent to the scene. Lake County Deputy Murchek arrived on the scene at approximately 8:20 p.m. with his dog Sabor. Deputy Murchek took Sabor around the vehicle, and the dog alerted to the rear hatch area of the Range Rover. Indiana state police then obtained a search warrant for the Range Rover based on the surveillance observations and Sabor's alert. In obtaining this warrant, the Indiana trooper failed to inform the magistrate that the first dog failed to alert. During the search of the Range Rover, Indiana troopers seized $705,880 in cash contained in two Tide detergent boxes and one plain brown box along with numerous miscellaneous documents. Many of the documents were receipts in Davis's name for home improvements at 6960 Leslee Crest Drive, West Bloomfield, Michigan, which were paid for in cash.

Following the search and seizure of Davis's vehicle, a DEA agent executed a search warrant at Davis's residence at 6960 Leslee Crest Drive. At the residence, DEA agents discovered a receipt for the rental of a storage locker in the name of Tony Muhammad along with a key to a storage locker. The agents were able to find the storage locker matching the receipt and the key at a storage facility in Troy, Michigan. A DEA agent obtained a search warrant to search the storage locker. Upon a search of the storage locker, DEA agents discovered approximately $2 million in cash.

B. Procedural History

On August 9, 2001, Presley, Davis, and several other codefendants were indicted in the United States District Court for the Eastern District of Michigan. Both Davis and Presley were charged with conspiracy to distribute and possession with the intent to distribute more than five kilograms of cocaine ("Count One"), and conspiracy to launder monetary instruments ("Count Twelve"). Davis was also charged with money laundering ("Counts Thirteen and Fourteen") and aiding and abetting another codefendant in money laundering ("Count Fifteen"). Presley was additionally charged with the use of a communication

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facility in committing a drug offense ("Count Two"). The indictment alleged that the defendants were involved in a large-scale drug...

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