U.S. v. Nichols
| Decision Date | 09 March 1992 |
| Docket Number | No. 91-5467,91-5467 |
| Citation | 956 F.2d 271 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Johnny NICHOLS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before BOYCE F. MARTIN, Jr., MILBURN and DAVID A. NELSON, Circuit Judges.
Johnny Nichols appeals his three-count drug conviction for knowingly and intentionally possessing cocaine and cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Although Nichols' appeals three separate grounds, the central element to all his claims is that the evidence used to convict him is insufficient. Nichols argues that but for evidentiary errors by the court he would not have been convicted. For the reasons stated below, we affirm the district court in this matter.
On May 10, 1989, based upon a tip from an informant, Memphis police executed a search warrant for Nichols' residence. Several days before the issuance of the warrant officers had supplied the informant with money, taken him to Nichols' apartment, watched him enter the apartment, and then watched him return to the detectives with a rock of "crack cocaine." The court found the information provided by the informant was reliable because the informant had assisted police in two prior drug cases unrelated to Nichols'.
When officers arrived at Nichols' apartment complex, they set up surveillance while waiting for assistance from other officers. Before back-up arrived, they observed Nichols come out of his apartment, enter his vehicle, and leave the complex. The informant had warned the officers that if Nichols left the apartment before the officers could search it, Nichols would be carrying drugs. The officers followed Nichols to a second apartment complex where they observed Nichols speaking briefly to two unknown persons and then crossing the street to a convenience store. By this time, other police officers had joined the original officers whereupon they proceeded to detain Nichols.
When the officers approached Nichols' car, they observed a plastic bag containing "crack cocaine" on the ground near where Nichols had exited his car. The officers saw a bag of cocaine powder lying just inside Nichols' car on the carpet and a loaded gun lying beside the arm rest near the driver's seat. The officers found $1,124 cash in Nichols' pocket.
A jury convicted Nichols on all three counts. He received a sentence of six and one-half years imprisonment for the cocaine counts and five years imprisonment to run consecutively on the firearm count. Nichols also received a four-year term of supervised release.
Nichols makes three arguments on appeal. First, Nichols claims the trial court erred in refusing to disclose the identity of the informant. Second, Nichols argues the court erred in allowing into evidence a detective's statement that he was at Nichols' residence pursuant to a search warrant and that the detective chose to follow Nichols rather than search the apartment based on an informant's tip. Third, Nichols argues the court erred in allowing evidence that the pistol found in his car was stolen.
Nichols' first argument on appeal is that the trial court abused its discretion when it refused to disclose the identity of the informer during the hearing on the motion to suppress evidence. As a related matter, Nichols argues that there was a Franks violation with regard to the issuance of the search warrant, given the erroneous basis for the issuance of the search warrant. At the motion to suppress hearing, Detective Swatzyna told the court that the government search warrant was issued in part because Swatzyna had witnessed the government informant purchasing drugs at Nichols' apartment five days prior to Nichols' arrest. Nichols contends, however, that he did not sell crack cocaine to the informant from his apartment within five days prior to his arrest and, therefore, the detective did not have reliable information on which to base a search warrant. Nichols argues that because the search warrant was invalid, all agents that followed the issuance of the search warrant were tainted.
We must first address whether the district court abused its discretion in refusing to disclose the informant's identity. It is within the trial court's discretionary powers to determine whether or not the government should disclose an informer's identity. United States v. Cummins, 912 F.2d 98, 103 (6th Cir.1990). Nichols argues under Rovario v. United States, 353 U.S. 53 (1957), that the trial court should have disclosed the informant's identity. Rovario, however, is not comparable to Nichols' case. The undisclosed witness was not a participant in the criminal activity with which Nichols was charged, nor the only material witness who could support the defendant's defense, as was the case in Rovario, 353 U.S. at 53.
Next, we must determine whether the search warrant was invalid under Franks v. Delaware, 438 U.S. 154, 171 (1978). Under Franks, a search warrant is invalidated if the defendant can make a substantial showing of deliberate falsehood or of reckless disregard for the truth on the part of the search warrant affiant in securing the search warrant. The trial court addressed the Franks issue and determined that Nichols offered no proof to warrant a finding that Swatzyna made any false statements or that he acted with reckless disregard for the truth. We agree. The trial court considered Nichols' claim that he had never sold drugs from his apartment within five days prior to his arrest but rejected Nichols' assertion in favor of Detective Swatzyna's version of events. Further, the court found that the detective's testimony that the informant had given information resulting in the seizure of drugs on at least two other occasions lent credibility to the informant's information and justified the government's reliance on the information regarding Nichols. The court concluded that because the detectives' actions were based on information obtained from a reliable informant, the detectives were warranted in making an investigatory stop of Nichols and then in...
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