United States v. Abernathy

Decision Date08 December 2016
Docket NumberNo. 16-5314,16-5314
Citation843 F.3d 243
Parties United States of America, Plaintiff–Appellee, v. Jimmy Jail Abernathy, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Mariah A. Wooten, Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Van Vincent, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

CLAY, J., delivered the opinion of the court in which DONALD, J., joined. KETHLEDGE, J. (pg. ––––), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Defendant Jimmy Jail Abernathy appeals from the judgment of conviction and sentence entered by the district court on March 14, 2016, pursuant to Defendant's conditional guilty plea to two counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), one count of possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c), and one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1), wherein Defendant reserved the right to challenge the district court's denial of his motion to suppress the evidence that the Nashville Police Department acquired from a search of Defendant's residence. We have subject matter jurisdiction to adjudicate this appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we REVERSE the district court's order denying Defendant's motion to suppress, and VACATE Defendant's convictions and sentence. We REMAND for further proceedings consistent with this opinion.

BACKGROUND
I. Facts

The relevant facts of this case are straightforward, and not in dispute. On April 26, 2013, Detectives Patrick Oakley, Henry Particelli ("Detective Particelli"), and Anthony Heil of the Metropolitan Nashville Police Department traveled to 5809 Tru Long Court in Antioch, Tennessee ("the residence" or "Defendant's residence"), where Defendant lived with his girlfriend. Once there, the Detectives searched the trashcans outside the residence looking for evidence connecting Defendant and his girlfriend to drug trafficking ("the trash pull"). Inside the trashcans, the Detectives found: (1) "Several Marijuana roaches1 with Marijuana residue inside;" (2) "Several plastic vacuumed packed heat sealed bags consistent to those used to package marijuana for resale containing marijuana residue with T22 markings;" (3) "USPS certified mail receipts addressed to Jimmy Jail Abernathy 5809 Tru Long Ct. Antioch TN [sic];" (4) mail belonging to Defendant's girlfriend; and (5) "One additional piece of mail addressed to ‘current resident’ " at the residence.

(R. 20–1, Search Warrant Affidavit, PageID #44.)

On the basis of this evidence, Detective Particelli applied to Judge Thomas Edward Nelson of the Metropolitan Nashville Davidson County General Sessions Court for a warrant to search Defendant's home and person. Detective Particelli submitted an affidavit in support of this warrant application (the "Affidavit"). The Affidavit contained form language stating that the Nashville Police Department had reason to believe that Defendant had violated the Tennessee RICO statute, the Tennessee money laundering statute, or the Tennessee Drug Control Act. The Affidavit also contained form language attesting that Detective Particelli had experience dealing with drug dealers, and detailing some common habits and practices of such dealers. Finally, the Affidavit contained a "Statement of Facts In Support of Probable Cause," which provided as follows:

This affidavit is made by Detective Henry Particelli, who has been a sworn law enforcement officer since 2010 with the Metro Nashville Police Department and is currently assigned as a narcotics investigator for the Central Precinct Crime Suppression Unit testified herein which is based upon information received from other law enforcement officers, unless otherwise stated, which your Affiant believes to be true, and is as follows:
I have received information that the occupants of 5809 Tru Long Ct. Antioch, TN 37013 Davidson County have been and are currently engaging in illegal drug activity . I searched police and utility data bases and discovered a silver Ford Expedition TN tag F1301F is currently registered to Jimmy Jail Abernathy with the address of 5809 Tru Long Ct. Antioch, TN 37013 Davidson County. I have personally observed the said vehicle parked out front of the residence on multiple occasions. I also discovered a 2008 Pontiac Solstice TN Tag A7289H is registered to [Defendant's girlfriend]. I have personally observed the said vehicle parked in the driveway of the residence. Webpro records states [sic] that [Defendant's girlfriend] is the owner of the property since 2006.
Within the last 72 hours your affiant posed as a garbage disposal employee. I went to 5809 Tru Long Ct. Antioch, TN 37013 Davidson County and picked up the garbage container that was left at the curbside of the residence on the morning of scheduled garbage pickup. I then sorted through the garbage and found the following items that were seized as evidence and turned into the MNPD property room:
1. Several Marijuana roaches with Marijuana residue inside
2. Several plastic vacuumed packed heat sealed bags consistent to those used to package marijuana for resale containing marijuana residue with T2 markings. T2 is a known strain of marijuana
3. USPS certified mail receipts addressed to Jimmy Jail Abernathy 5809 Tru Long Ct. Antioch TN [sic]
4. USPS certified mail receipts addressed to [Defendant's girlfriend].
5. One additional piece of mail addressed to ‘current resident’ at 5809 Tru Long Ct. Antioch, TN 37013 Davidson County
Based on the illegal drugs found in the waste container, your affiant wishes to search the premises of 5809 Tru Long Ct. Antioch TN [sic] and each person occupying said premises. In your affiant's training and experience persons at locations where drugs are sold and or used many times conceal or secrete illicit items on their person to conceal them from police detection. Your affiant has also learned in training and experience that many times subjects at locations involved in illicit drug activity are in possession of weapons and or have outstanding warrants for their arrest.

(Id. PageID #43–44 (emphasis added).) Thus, although Defendant had a lengthy history of drug and weapons charges, that information was neither in the Affidavit, nor presented to Judge Nelson.

Judge Nelson granted Detective Particelli's warrant application on April 28, 2013 ("the Warrant"). On May 3, 2013, the Nashville Police Department searched Defendant's residence. The search revealed large quantities of cash, marijuana, cocaine, and firearms. Thereafter, on January 29, 2014, a federal grand jury indicted Defendant in the Middle District of Tennessee on four drug and weapons charges.

II. Procedural History

Defendant moved to suppress the evidence that was seized when executing the Warrant, and also moved for a hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) to challenge the accuracy of certain representations made by Detective Particelli in the Affidavit. The district court denied the motion to suppress, determining that the Warrant was facially supported by probable cause. However, the district court granted the motion to conduct a Franks hearing.

At the Franks hearing, Defendant challenged Detective Particelli's statement in the Affidavit that he had "received information that the occupants of 5809 Tru Long Ct. Antioch, TN 37012 Davidson County have been and are currently engaging in illegal drug activity." Detective Particelli ultimately admitted that, when he submitted the Affidavit, he had: (1) no information that "somebody [was] selling [drugs] out of [Defendant's] residence;" (2) no direct evidence "that [Defendant] was trafficking drugs;" and (3) not seen Defendant "do anything connected to his house that might have to do with drugs." (R. 117, Suppression Hearing Transcript, PageID #553.) At the close of the hearing, the district court found that the statement violated Franks , and struck it from the Affidavit:

THE COURT : As to the Franks issue dealing with the first sentence of the search warrant affidavit ... I am finding that that is a misleading statement. It creates the impression that there is drug activity at the place to be searched. And there would be no reason to specifically have the occupants and the name of the street location if you weren't trying to create the impression that drug activity was going on in the house.
And so the result in looking at the affidavit, the Court needs to determine whether there is probable cause without that sentence.

(Id. PageID #568–69.) The district court nonetheless upheld the Search Warrant, finding that the trash pull alone established probable cause:

THE COURT : I am finding that the trash pull alone raises probable cause and excise the first sentence, there is still probable cause in the affidavit search warrant based on the vacuum-packed, heat-sealed bags consistent to those used to package marijuana for resale containing marijuana residue with T2 markings. T2 is a known strain of marijuana, and it reflects it is within the last 72 hours. I am finding that the search warrant affidavit creates probable cause for Tennessee Drug Control Act of 1989 violation based on the trash pull. And I am not finding that the first sentence was intentionally misleading. It simply is misleading. And whether it was reckless, intentional or inadvertent, it is misleading and inaccurate information in the context of the search warrant and should be excised in terms of determining whether there is probable cause in the search warrant affidavit and the search warrant itself.

(Id. PageID # 569–70.)

After losing at the Franks hearing, Defendant pled guilty to all counts, but reserved the right in his plea agreement to appeal the...

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