United States v. Brown

• Decision Date: 27 June 2013
• Docket Number: No. 12–1591.,12–1591.
• Citation: 732 F.3d 569
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sidney BROWN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

732 F.3d 569

UNITED STATES of America, Plaintiff–Appellee,

v.Sidney BROWN, Defendant–Appellant.

No. 12–1591.

United States Court of Appeals,

Sixth Circuit.

Argued: May 2, 2013.

Decided and Filed: June 27, 2013.

ARGUED:Scott Graham, Scott Graham PLLC, Portage, Michigan, for Appellant. Sally J. Berens, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Scott Graham, Scott Graham PLLC, Portage, Michigan, for Appellant. Mark V. Courtade, United States Attorney's OFFICE, Grand Rapids, Michigan, for Appellee.

Before: MARTIN, GUY, and McKEAGUE, Circuit Judges.

AMENDED OPINION

BOYCE F. MARTIN, Jr. Circuit Judge.

A jury convicted Sidney Brown of two crimes: (1) possession with intent to distribute twenty-eight grams or more of cocaine base and (2) possession of a firearm in furtherance of a drug-trafficking crime. Brown's appeal poses three questions. First, did the affidavit accompanying the search-warrant application establish probable cause for the magistrate to issue the search warrant? We hold that it did. Second, did the district court err by refusing to hold a Franks hearing? We hold that it did not. Third, could any rational trier of fact have found Brown guilty, beyond a reasonable doubt, of possession of a firearm in furtherance of a drug-trafficking crime? We hold that any rational trier of fact could have found, beyond a reasonable doubt, Brown guilty of this crime. Given the answers to these questions, we AFFIRM the district court's judgment.

A confidential informant told law enforcement that he had seen cocaine and what he considered to be drug dealing at Sidney Brown's house. A law-enforcement officer applied for a warrant to search Brown's home; in the affidavit accompanying the application, the officer recounted what the informant had told him. A federal magistrate issued the warrant and, upon executing it, law enforcement found cocaine, a Beretta pistol, which Brown admitted was his, and $4,700 in cash, in Brown's home. Brown moved to suppress the evidence seized, arguing that the affidavit failed to establish probable cause for the search; in the alternative, Brown argued for a Franks hearing because he asserted that the affidavit contained false statements. The district court, in a written opinion, denied the motion.

At trial, at the close of the prosecution's case, Brown moved, under Federal Rule of Criminal Procedure 29, for acquittal on all counts. The district court denied the motion. Neither Brown nor the government put on any new evidence. Then, the district court announced to the jury that the “the proofs in this matter” had been concluded.

A federal jury found Brown guilty of all three counts in the indictment: (1) possession with intent to distribute twenty-eight grams or more of cocaine base, a violation of 21 U.S.C. sections 841(a)(1), (b)(1)(B)(iii); (2) possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. section 924(c)(1)(A)(i); and (3) possession, as a felon, of a firearm, in violation of 18 U.S.C. section 922(g)(1). The district court sentenced him to seventeen-and-a-half years' imprisonment. Brown timely appealed only counts (1) and (2).

On appeal, Brown argues that the district court erred both in denying his motion to suppress and in rejecting his argument that the officer's affidavit did not provide probable cause for the magistrate to issue the search warrant. When reviewing a district court's order denying a defendant's motion to suppress, we review for clear error the district court's factual findings, but we review de novo the district court's application of the law to those facts. United States v. Keith, 559 F.3d 499, 503 (6th Cir.2009) (citing United States v. Garcia, 496 F.3d 495, 502 (6th Cir.2007)).

The district court held no fact-finding hearing in conjunction with Brown's motion to suppress; rather, the court reviewed the affidavit and held that it provided probable cause for the magistrate to issue the search warrant. Therefore, we will review de novo the court's legal conclusion that the affidavit provided probable cause. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993). Given the de novo standard of review, where, as here, the district court reviewed the magistrate's probable cause determination, we owe the district court's conclusion no particular deference. Id., at 1362–63.

Yet we must give great deference to a magistrate's determination of probable cause. United States v. Greene, 250 F.3d 471, 478 (6th Cir.2001) (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc), cert. denied,531 U.S. 907, 121 S.Ct. 251, 148 L.Ed.2d 181 (2000) (parallel citations omitted); United States v. Finch, 998 F.2d 349, 352 (6th Cir.1993); United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991)). Consequently, we may only reverse a magistrate's decision to grant a search warrant if the magistrate arbitrarily exercised his or her authority. Id. (citing Allen, 211 F.3d at 973;Finch, 998 F.2d at 352;United States v. Swihart, 554 F.2d 264, 267–68 (6th Cir.1977)).

We review the probable-cause sufficiency of an affidavit to ascertain “ ‘whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited.’ ” Id. (quoting Davidson, 936 F.2d at 859). Probable cause exists “ ‘when there is a ‘fair probability,’ given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place.' ” Id. at 479 (quoting Davidson, 936 F.2d at 859). In reviewing whether the affidavit supports the magistrate's probable-cause determination, we must review the affidavit in a commonsense, rather than a hypertechnical, manner. Id. (citing Allen, 211 F.3d at 973;Davidson, 936 F.2d at 859). This means that we must review the affidavit based on “a ‘totality of the circumstances' determination, rather than a line-by-line scrutiny.” Id. (quoting Allen, 211 F.3d at 973).

Brown argues that Officer Frederick's affidavit did not establish probable cause because it did not describe sufficiently the basis for the conclusion that the confidential informant was reliable. Frederick's affidavit stated that Frederick had been in contact with MacKellar of the Narcotics Enforcement Team, and had learned that the informant “had been used by [the Narcotics Enforcement Team] in numerous other investigations and provided information that ha[d] been corroborated and shown to be reliable by [the Narcotics Enforcement Team], the Michigan State Police and the Grand Rapids Police Department.” Brown criticizes this portion of Frederick's affidavit for “containing no explanation indicating that [the informant] provided any information regarding drug trafficking or drug convictions.”

Brown's attack on this portion of the affidavit seems hypertechnical. Frederick might have specified the exact nature of the information that the informant had provided to law enforcement agencies, but such a level of specificity is not necessary; a commonsense reading of this portion of the affidavit suggests that the informant's information did pertain to drug trafficking (and drug convictions) precisely because the Narcotics Enforcement Team and other law-enforcement agencies had successfully used it.

Frederick's affidavit also stated that he was “personally aware that [the informant] ha[d] provided information that has led to the prosecution and conviction of at least two federal defendants in the Western District of Michigan, as well as other persons convicted by Michigan authorities.” Brown criticizes this part of the affidavit for failing to “identify the types of crimes involved or any information identifying when the activity occurred or how [Frederick] was involved.”

But, again, a commonsense reading would suggest that the crimes involved were drug related. Frederick might have added what crimes the convictions were for, but our cases do not require an affiant to provide such detail—“[t]he affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.” Allen, 211 F.3d at 975.

Moreover, our precedent “clearly establishes that the affiant need only specify that the confidential informant has given accurate information in the past to qualify as reliable.” Greene, 250 F.3d at 480 (citing Allen, 211 F.3d at 975;Finch, 998 F.2d at 352;United States v. Dudek, 560 F.2d 1288, 1292 (6th Cir.1977)). In Greene, we upheld a search warrant in which the affiant, a law-enforcement officer, averred that the confidential informant had assisted federal and state law enforcement officials in the past and that this information had resulted in numerous felony arrests. Greene, 250 F.3d at 480.

Here, Frederick's statement that he was personally aware that the informant had provided information leading to convictions of at least two federal defendants suffices, under Greene and the cases it cites, to establish that the informant had given accurate information in the past and thus that the informant was reliable.

Brown also argues that Frederick failed to corroborate sufficiently the informant's statements. Brown argues that, while Frederick corroborated the informant's factual assertion that Brown was on parole, Frederick failed to corroborate that he was on a “tether” and totally failed to corroborate the informant's assertions about witnessing drug transactions at Brown's house.

Brown's argument fails because United States v. Allen, 211 F.3d 970 (6th Cir.2000) (en banc) cert. denied,531 U.S. 907, 121 S.Ct. 251, 148 L.Ed.2d 181 (parallel citations omitted), does not invariably require an affiant to provide corroboration for a confidential informant's statements contained in an affidavit supporting a search-warrant application. Allen, 211 F.3d at 976. In Allen, we held that, if a confidential informant—personally known by the affiant to be...