505 F.3d 458 (6th Cir. 2007), 05-2195, United States. v. Kenny

Docket Nº:05-2195.
Citation:505 F.3d 458
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Michael KENNY, Defendant-Appellant.
Case Date:October 10, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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505 F.3d 458 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth Michael KENNY, Defendant-Appellant.

No. 05-2195.

United States Court of Appeals, Sixth Circuit.

October 10, 2007

Argued: April 19, 2007.

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 03-20025-David M. Lawson, District Judge.

Page 459

ARGUED:

Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellant.

Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.

ON BRIEF:

Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellant.

Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: DAUGHTREY and GIBBONS, Circuit Judges; SCHWARZER, District Judge.[*]

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OPINION

WILLIAM W. SCHWARZER, District Judge.

Kenneth Michael Kenny appeals his conviction on one count of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). On appeal he contends that the district court erred in denying his motion to suppress evidence found in a search of his residence at 4970 North Finley Lake Road and in denying his motion for a new trial based on newly discovered evidence that the restoration of his civil rights precludes application of section 922(g) to him. Finding his contentions to lack merit, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 6, 2003, police executed a search warrant at 530 North Coolidge Street in Harrison, Michigan. In a pole barn on the property, officers found and arrested Kenny and his son, Christopher Perry.1 In the barn, officers found a partitioned area containing a methamphetamine manufacturing lab. Officers also discovered some sixty weapons on the property. On the next day, Detective David Stoppa obtained and executed a search warrant for Kenny' s residence at 4947 North Finley Lake Road. The supporting affidavit incorporated the information contained in the affidavit that supported the search at 530 North Coolidge Street and in addition contained the results of the search of that property. Among other things, the affidavit stated that, according to Stoppa's named informant, Kenny was associated with Joseph Kozma, the informant's source of methamphetamine, and had been said by Kozma to be "cooking" methamphetamine in the pole barn lab. The search of Kenny's residence uncovered several firearms and paraphernalia for the manufacture of methamphetamine.

The district court denied Kenny's pretrial motion to suppress evidence seized at his residence. The court ruled that

the residence of an individual who is actively involved in drug activity, manufacturing and trafficking, is fair game and probable cause exists and is shown by a finding that the individual is actively involved in that conduct, and that the individual lives in that house.

The jury returned a guilty verdict against Kenny on the gun count on May 4, 2004. Sentencing was adjourned pending the decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On January 21, 2005, Kenny moved for a new trial based on newly discovered evidence. The district judge, after a hearing, denied the motion, United States v. Kenny, 375 F.Supp.2d 622 (E.D. Mich. 2005), and on August 24, 2005, sentenced Kenny to thirty-six months imprisonment. Kenny timely appealed.

DISCUSSION

I. THE STOPPA AFFIDAVIT ESTABLISHED PROBABLE CAUSE TO SEARCH KENNY'S RESIDENCE

"When reviewing decisions on motions to suppress, this court will uphold the factual findings of the district court unless clearly erroneous, while legal conclusions are reviewed de novo." United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996). The court views the evidence "in the light most likely to support the district court's decision." United States v. Williams, 962 F.2d 1218, 1221 (6th Cir. 1992) (internal quotations omitted). The magistrate judge's decision to issue the warrant is given great deference, with this court determining whether the magistrate

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judge "had a substantial basis for finding that the affidavit established" a " 'fair probability,' given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985) (per curiam). This requires "a nexus between the place to be searched and the evidence sought." United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)(en banc). "In other words, the affidavit must suggest 'that there is reasonable cause to believe that the specific "things" to be searched for and seized are located on the property to which entry is sought' and not merely 'that the owner of property is suspected of crime.' " United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978)).

The affidavit of Detective Stoppa, an officer with experience and training in drug...

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