U.S. v. Berry

• Decision Date: 14 May 2009
• Docket Number: No. 08-1048.,08-1048.
• Citation: 565 F.3d 332
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee Henry BERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

565 F.3d 332

UNITED STATES of America, Plaintiff-Appellee, v. Lee Henry BERRY, Defendant-Appellant.

No. 08-1048.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2009.

Decided and Filed: May 14, 2009.

ARGUED: Robert J. Dunn, Law Office, Bay City, Michigan, for Appellant. Daniel R. Hurley, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Shawn M. Sutton, Law Office, Bay City, Michigan, for Appellant. Daniel R. Hurley, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.^*

OPINION

JACK ZOUHARY, District Judge.

Defendant Lee Henry Berry appeals his convictions and sentencing in the district court. A jury convicted Berry on three counts of possession with intent to distribute controlled substances and on one count of being a felon in possession of a firearm. Prior to trial, Berry moved to suppress some of the evidence against him, arguing the evidence was seized pursuant to an invalid search warrant. The district court denied the motion. A jury convicted Berry, and the district court sentenced him to 360 months of imprisonment, to run consecutive to his term of imprisonment for violating the terms of his probation related to a state offense. Berry argues on appeal that the district court committed reversible errors when it denied his motion to suppress and when it sentenced him. For the reasons set forth below, we AFFIRM.

BACKGROUND

In 2005, the Bay Area Narcotics Enforcement Team (BAYANET), a narcotics task force in the Saginaw and Bay City, Michigan area, was investigating an alleged drug operation involving Melvin Hoskins. Hoskins lived at 1226 Asbury Court, Saginaw Township, Michigan. Sergeant Greg Potts received a tip from a confidential informant that one Lee Henry Berry was living at 1228 Asbury Court, the same duplex as Hoskins. Sergeant Potts and other officers were familiar with Berry because of his prior criminal history, including a 2000 drug trafficking conviction for which he was serving lifetime probation. The tip that Berry was living at the Saginaw Township address was significant because Berry's lifetime probation required him to immediately notify his probation officer of any change of address, yet Berry last told his probation officer he lived in Bay City.

After Berry was observed at 1228 Asbury Court, Sergeant Potts reviewed records of the Michigan Secretary of State and discovered Berry had listed the Asbury Court address as his residence on his driver's license, as well as on several vehicle titles. Another task force officer, Wayne Stockmeyer, interviewed the woman who owned the Asbury Court property, Sugi Ponnampalam. Ponnampalam said a man named "Alvin King" rented the property, but identified Berry from a photo as the man who rented and lived at 1228 Asbury Court. She said Berry paid monthly rent of $675 in cash and had lived there for three years.

Law enforcement determined it would attempt to arrest Berry at Asbury Court for violating the terms of his probation by failing to register the residence with his probation officer. At approximately 10:00 p.m. on April 29, 2005, task force officers saw Berry alone, driving a Cadillac into the driveway at 1228 Asbury Court. The officers arrested him as he exited the car and then searched the car incident to the arrest. On the floor of the car, immediately in front of the driver's seat, they found a number of rocks of suspected crack cocaine in plastic sandwich bags. Officers field-tested the drugs and confirmed the presence of cocaine.

The officers then decided to obtain a search warrant for 1228 Asbury Court. Sergeant Potts swore out the warrant affidavit. In the affidavit, Potts sought permission to search the Asbury Court residence for evidence of two crimes: (1) evidence of drugs; and (2) evidence establishing that Berry lived at 1228 Asbury Court in violation of the terms of his probation. In support of the requested search, Paragraph 4 of the affidavit contained the following information:

It has been my personal experience and I have been so informed by many other Police Officers whom I know to be truthful ... that persons present in the residence or on the property (or entering or leaving the residence or property) where a search warrant for controlled substances is being executed oftentimes conceal controlled substances on their persons (this can be because they are selling or buying the substances or in an attempt to conceal the substances from the Police search); that vehicle's [sic] parked on the premise of places where controlled substances are found or sold oftentimes contain controlled substances.... It has further been my experience that people dealing and using controlled substances will oftentimes use the motor vehicles to store and transport controlled substances.... Furthermore, I know from my training and experience that people who sell drugs often possess firearms for the purpose of protecting themselves and the drugs from thefts or searches.

I have previously been told by a confidential informant (CI) that Lee Henry Berry was living at the residence described in paragraph 3 above. Additionally, the CI pointed the residence out to me. I have also checked the Secretary of State computer via the LEIN system and found that Lee Henry Berry's operator's license address is listed as 1228 Asbury Ct, Saginaw, Michigan, which is also the address listed for various vehicle [sic] which he is listed as owning. Furthermore, Officer Wayne Stockmeyer of the Bay City Police department contacted Sugi Ponnampalam, the owner of the premises described in paragraph 3 above. She stated that she is the owner of 1228 Asbury Ct, and that she is currently renting the residence to an individual she knows as Alvin King, an older black male, and he pays $675 per month cash for renting the unit. Officer Stockmeyer showed Sugi Ponnampalam a photograph of Lee Henry Berry, and she identified the photograph as being the person she knows as Alvin King, the renter of the duplex. She said that she has owned the dwelling for about 3 years and that the person she knows as Alvin King has lived there the entire time.

I know that Lee Henry Berry was convicted of delivery or attempted possession with intent to deliver less than 50 grams of a mixture containing cocaine approximately 2/23/2000, before Honorable William J. Caprathe, Bay County Circuit Judge, and that he was sentence[d] to lifetime probation. I have talked with his probation office[r], Steve Marshall, who informed me that according to the Probation Department's records, Lee Henry Berry lists his residence as being in the City of Bay City. I also know by having seen a listing of the "special conditions" of Lee Berry's probation that he is required to "Notify the probation officer immediately of any change of address or employment status." Steve Marshall told me that Lee Berry has never reported that he lives in Saginaw Township.

During the evening hours of April 29, 2005, Lee Henry Berry was arrested by Officer Stockmeyer and officers from the Bay Area Narcotics Enforcement Team (BAYANET) for violating probation. The arrest took place outside of the residence described in paragraph 3 above after he was seen arriving in a car. Officer Stockmeyer told me that Lee Berry was the driver and only occupant of the car. Officer Stockmeyer also told me that as part of the search incident to arrest he found a number of rocks of what appeared to be crack cocaine on the floor of the car under where Lee Berry was sitting. Stockmeyer told me that he field tested the crack cocaine and it tested positive for the presence of cocaine.

The state judge signed the warrant at 12:10 a.m. on April 30, 2005, authorizing the officers to search for the following evidence at 1228 Asbury Court: (1) cocaine and other controlled substances; (2) residency documents and similar items showing the identity of the persons residing there; and (3) a long list of standard drug-search items, including scales, packaging materials, sales ledgers, currency, and firearms.

Officers conducted the search during the early morning hours of April 30. In the house, officers found significant evidence of drug trafficking, including four digital scales, known cutting agents, packaging materials, several firearms, ammunition, and quantities of drugs. In a safe in the bedroom, they found a single rock of crack cocaine weighing approximately 17 grams and a zip-loc bag containing 12 grams of powder cocaine. Pills were also found in the house, including 110 tablets of diazepam. Two handguns were in the safe with the drugs, and another handgun was in the bedroom, under a mattress. Two of the firearms had been reported stolen several years earlier.

The case was eventually referred to federal authorities. In November 2005, Berry was indicted on six counts-four drug charges and two firearm charges:

• Count One charged Berry with possession with intent to distribute the cocaine base found in the vehicle.

• Count Two charged Berry with possession with intent to distribute more than five grams of cocaine base found in the safe.

• Count Three charged Berry with possession with intent to distribute more than five grams of powder cocaine found in the safe.

• Count Four charged Berry with possession with intent to distribute diazepam.

• Count Five charged Berry with being a felon in possession of a firearm.

• Count Six charged Berry with knowingly possessing stolen firearms.

Prior to trial, Berry moved for suppression of the evidence found during the search of his residence on the grounds that the warrant was invalid on its face. Berry argued the underlying affidavit failed to establish the requisite nexus between 1228 Asbury Court and drug activity. The district court denied the motion, finding probable cause to search the house based on both the probation violation and the drugs found in Berry's car. The district court...