874 F.3d 490 (6th Cir. 2017), 15-5793, United States v. White

Docket Nº:15-5793
Citation:874 F.3d 490
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALBERT DAJUAN WHITE, Defendant-Appellant
Attorney:ON BRIEF: Dennis J. Clark, CLARK LAW FIRM PLLC, Detroit, Michigan, for Appellant. Samuel R. Stringfellow, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.
Judge Panel:Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges. GILMAN, J., joined. STRANCH, J. (pp. 22-34), delivered a separate dissenting opinion. JANE B. STRANCH, Circuit Judge, dissenting.
Case Date:October 27, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 490

874 F.3d 490 (6th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ALBERT DAJUAN WHITE, Defendant-Appellant

No. 15-5793

United States Court of Appeals, Sixth Circuit

October 27, 2017

Page 491

[Copyrighted Material Omitted]

Page 492

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:14-cr-20018-1--John Thomas Fowlkes, Jr., District Judge.

United States v. White, (W.D. Tenn., Nov. 10, 2014)

ON BRIEF: Dennis J. Clark, CLARK LAW FIRM PLLC, Detroit, Michigan, for Appellant.

Samuel R. Stringfellow, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges. GILMAN, J., joined. STRANCH, J. (pp. 22-34), delivered a separate dissenting opinion.

OPINION

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GRIFFIN, Circuit Judge.

After a narcotics officer watched defendant Albert White sell marijuana to an

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undercover informant in the driveway of White's home, the officer sought a search warrant for the residence. His affidavit recounted the recent drug deal, a confidential tip that White was selling marijuana from the residence, defendant's previous drug offenses, and the fact that defendant keeps pit bulls " at his residence." Defendant argues that this information is so lacking in indicia of probable cause that no reasonable officer would believe there was probable cause to search his home. We disagree and affirm his convictions and sentences.

I.

In October 2013, narcotics investigator Brandon Williams received information from a confidential source that Albert White was selling marijuana from 196 Turner Lane in Covington, Tennessee. Williams enlisted the confidential source to execute a " controlled buy" from White. Equipped with a recording device and $250 in buy money, the confidential source met White in the driveway of 196 Turner Lane. When he arrived, defendant was already sitting in his white truck, where the confidential source joined him to consummate the deal. Following the exchange, defendant drove off and the confidential source rendezvoused with Williams, who was staked out nearby monitoring the transaction. After reviewing the footage and conducting some additional investigation, Williams prepared an affidavit in support of a search warrant for 196 Turner Lane. In addition to recounting Williams' law-enforcement and narcotics-investigation experience, the affidavit stated: Investigator Brandon Williams received information that marijuana was being sold from 196 Turner Lane in Covington, TN 38019 in Tipton County, TN by a black male identified as Albert Dajuan White. Investigator Brandon Williams initiated a controlled purchase of marijuana with the use of a confidential source from the residence. Investigator Brandon Williams placed audio and video on the confidential source. The confidential source then proceeded to 196 Turner Lane in Covington, TN[,] Tipton County, TN. Investigator Brandon Williams observed the confidential source pull into the driveway of 196 Turner Lane in Covington, TN 38019 in Tipton County, TN and pull up next to a white Chevrolet truck where Albert White gave the confidential source the marijuana for the previously recorded drug fund money. Investigator Brandon Williams then observed the white Chevrolet truck leave the residence with Albert White driving the vehicle. The confidential source then left the residence and met with Investigators where the marijuana was recovered. The transaction was captured on an audio and video device. This incident occurred in Tipton County, TN. in the last seventy-two hours. A sudden and forceful entry is clearly necessary for the safety of Deputies, residents, or other nearby persons or property due to Albert Dajuan White's extensive criminal history consisting of Evading Arrest, Resisting arrest, and numerous possessions of SCH II and VI. Albert is also known to have dogs believed to [be] pit bulls at his residence.

Persuaded that the foregoing was sufficient to establish probable cause, a local state court judge issued a search warrant. The ensuing search uncovered over a pound of marijuana, a firearm, ammunition, and roughly $32,000 in cash, some of which was traced to the controlled buy.

White was indicted on drug and firearm-possession charges and moved to suppress the evidence seized from his residence, arguing that the affidavit failed to establish

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probable cause to believe that contraband would be found there. No reasonable officer would have believed otherwise, defendant also contended, because " the affidavit is so facially defective given that no time or date is stated as to when the alleged criminal activity took place." A magistrate judge issued a report, recommending that the district court deny the motion because the affidavit established probable cause and, in any event, it was not so lacking in that department that the good-faith exception would apply. The district court agreed with defendant that the affidavit failed to establish probable cause. However, noting defendant's failure to object to the magistrate's good-faith ruling, the district court held that the magistrate judge's good-faith analysis was sound and denied the motion.

Defendant proceeded to trial, where a jury found him guilty of being a felon in possession of a firearm and felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 33 months in prison, concurrent with an on-going state sentence for the violation of his probation.

Defendant's appeal presents two issues: first, whether the district court erred in denying his motion to suppress, and second, whether the district court committed plain error in failing to specify the " start date" for his federal sentence or adjusting it under U.S.S.G. § 5G1.3(b).

II.

In the motion-to-suppress context, this court reviews the district court's factual findings for clear error and its legal conclusions de novo. United States v. Washington, 380 F.3d 236, 240 (6th Cir. 2004).

Typically, this court reviews only those issues adequately preserved for appeal. When a party neglects to advance a particular issue in the lower court, or fails to lodge a specific objection to a particular aspect of a magistrate judge's report and recommendation, we consider that issue forfeited on appeal. United States v. Archibald, 589 F.3d 289, 295-96 (6th Cir. 2009); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Both types of forfeiture could apply in this case. In the district court, defendant neglected to make the assertions of lack of good-faith he advances on appeal, and, perhaps more fatally, he failed to object to the magistrate's good-faith analysis, something both the government and the district court noted below.

Nevertheless, our forfeiture rule is not inflexible. Like other procedural rules, it too is susceptible to abandonment, see

Washington, 380 F.3d at 240 n.3, and for whatever reason, the government has decided not to pursue this forfeiture issue on appeal. Loath to raise issues for the parties, much less resolve cases on them, we therefore proceed to the merits. Cf. DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006) (" Our function is to review the case presented to the district court, rather than a better case fashioned after a district court's unfavorable order." ).

III.

Defendant argues that the district court erred in denying his motion to suppress. Though it correctly held that the affidavit lacked probable cause, he claims that the district court erred in ruling that the good-faith exception applied. The government does not challenge the district court's probable-cause ruling, arguing instead that the affidavit plainly qualifies for the good-faith exception. We therefore proceed to the good-faith inquiry, assuming, without

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deciding, that the affidavit failed to establish probable cause.

A.

In United States v. Leon, the Supreme Court created an exception to the exclusionary rule for evidence " seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In a break from the previously reflexive and uncompromising approach of excluding all evidence seized without probable cause, the Supreme Court established a new objective inquiry limiting suppression to circumstances in which the benefits of police deterrence outweigh the heavy costs of excluding " inherently trustworthy tangible evidence" from the jury's consideration. Id. at 907. Following Leon, courts presented with a motion to suppress claiming a lack of probable cause must ask " whether a reasonably well trained officer would have known that the search was illegal despite...

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