U.S. v. Kenny

• Decision Date: 10 October 2007
• Docket Number: No. 05-2195.,05-2195.
• Citation: 505 F.3d 458
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Michael KENNY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

505 F.3d 458

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Michael KENNY, Defendant-Appellant.

No. 05-2195.

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2007.

Decided and Filed: October 10, 2007.

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.^*

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 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 trafficking investigations, stated that Kenny had been arrested inside a building which contained a methamphetamine manufacturing lab. He and Perry were the only individuals in the building at the time and appeared to be in charge of the functioning of the lab. On an earlier occasion, Stoppa's informant, while at the 530 North Coolidge Street property, had been told by Kozma, an associate of Kenny in the distribution of methamphetamine, that Kenny was not coming out of the pole barn because he was "cooking"—which she understood to mean that he was making methamphetamine. As a result of the search, a methamphetamine lab was discovered along with a kilo of methamphetamine and a large quantity of components and ingredients. Based on his experience, training and information, Stoppa asserted that he had reasonable cause to believe that the search of the described premises (the residence) would reveal evidence of the outlined crimes.²

In United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir.2002), we held, following a long line of precedents, that a sufficient nexus existed to search the residence of a known drug dealer after he had been arrested for possession of cocaine. As we explained in McPhearson, the inference that a drug dealer keeps evidence of wrongdoing in his residence can be drawn permissibly if, as in Miggins, the affidavit had "the independently corroborated fact that the defendants were known drug dealers at the time the police sought to search their homes." McPhearson, 469 F.3d at 524. In McPhearson, the police obtained a warrant to search defendant's residence after they found crack on his person in a search incident to his arrest for assault. Id. at 521. At the time of the arrest, defendant was standing on the threshold of his residence. Id. These were the only facts in the affidavit, and the court found that "[i]n the absence of any facts connecting McPhearson to drug trafficking, the affidavit in this case cannot support the inference that evidence of wrongdoing would be found in McPhearson's home because drugs were found on his person." Id. at 525.

Kenny contends that Miggins does not support the search of his residence. He argues that he was not a "known drug dealer," never having been arrested or convicted of a drug offense, and that he was never observed in drug trafficking.

There was substantial evidence, however, that Kenny was engaged in manufacturing methamphetamine. He was arrested at the site of the methamphetamine lab and the location of a large quantity of methamphetamine and ingredients for its manufacture under circumstances suggesting he was responsible for the operation. The informant related that Kenny was engaged in cooking methamphetamine and that he was associated with Kozma, who had supplied her with methamphetamine. The search at 530 North...