U.S. v. Brooks

• Decision Date: 05 February 2010
• Docket Number: No. 08-4280.,08-4280.
• Citation: 594 F.3d 488
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Lyna BROOKS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

594 F.3d 488

UNITED STATES of America, Plaintiff-Appellant, v. Lyna BROOKS, Defendant-Appellee.

No. 08-4280.

United States Court of Appeals, Sixth Circuit.

Argued: January 12, 2010.

Decided and Filed: February 5, 2010.

ARGUED:

Daniel Steven Goodman, United States Department of Justice, Washington, D.C., for Appellant. Edward G. Bryan, Federal Public Defender's Office, Cleveland, Ohio, for Appellee.

ON BRIEF:

Daniel Steven Goodman, United States Department of Justice, Washington, D.C., for Appellant. Edward G. Bryan, Vanessa F. Malone, Federal Public Defender's Office, Cleveland, Ohio, for Appellee.

Before MARTIN, BOGGS, and WHITE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which BOGGS, J., joined. WHITE, J. (pp. 495-96), delivered a separate concurring opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

A federal grand jury indicted appellee Lyna Brooks for possession with the intent to distribute cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) after police executed a search warrant on his residence and found, among other things, 136.21 grams of crack. Brooks moved to suppress the evidence on the grounds that the affidavit submitted in support of the application for the search warrant was insufficient to give rise to probable cause to search the residence. Specifically, Brooks argued that the majority of the information in the search warrant affidavit was stale and that what information was not stale was insufficient to give rise to probable cause to search the residence. The district court agreed and suppressed all of the evidence obtained from the search. The government appeals that ruling. Although we agree with the district court that much of the information set forth in the affidavit was stale, we find that the non-stale information was, on its own, sufficient to give rise to probable cause to believe that contraband or evidence of a crime would be present in Brooks's residence. We therefore REVERSE and REMAND for further proceedings.

I.

On the morning of October 10, 2006, two law enforcement officers, Lieutenant Rhoades and Patrolman Kilgore, were executing arrest warrants in connection with an operation of METRICH, a local joint drug task force in Richland County, Ohio. A state grand jury had indicted Brooks several months earlier for the state crime of Aggravated Drug Trafficking in Crack Cocaine. Rhoades and Kilgore thus sought out Brooks at his last known residence to serve the indictment and arrest him pursuant to a properly-issued arrest warrant. Brooks answered when the officers knocked on the door of the residence. The officers served Brooks with the indictment and placed him under arrest. The officers also smelled a strong odor of marijuana smoke wafting from the residence.

Brooks indicated that he needed to put on a pair of shoes before going to the police station with the officers. Lieutenant Rhoades accompanied Brooks to a bedroom so that he could retrieve his shoes. In the bedroom, Rhoades observed an ashtray that contained marijuana seeds.¹ At some point during this process, the officers also conducted a pat-down search of Brooks and found $1,000 in cash in Brooks's back pocket.

At this point, most readers will assume they know what comes next—the officers immediately search the parts of the bedroom not in plain view, find more contraband, and then go get a search warrant. Surprisingly, and encouragingly, this is not the case. Instead, the officers took Brooks out of the residence and froze the scene. They then met with other METRICH officers and prepared an application for a warrant to search the residence. The key aspect of a search warrant application is the affidavit submitted to the magistrate to establish probable cause. The officers prepared the affidavit with the assistance of other members of the METRICH team, and Lieutenant Rhoades ultimately executed the affidavit. This is where Brooks says the problem arose.

The affidavit cannot be praised for its technical perfection.² It is clearly a cut-and-paste job. There is a second paragraph 9 after paragraphs 10 and 11, and paragraphs 10 and 11 are relics from an affidavit used for a completely different case. Although sloppiness may raise flags, it is not in any way fatal because search warrant affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). What matters is the information contained in the affidavit. In this case, the material paragraphs are as follows:³

1. The affiant has been a police officer for over thirty four years with the Richland County Sheriff's Office and is presently assigned as a shift supervisor with road patrol

2. On December 21, 2001, XXXXXXX contacted members of the METRICH Enforcement Unit and stated that Lyna Brooks, D.O.B. 05/30/76, S.S.N. xxx-xx-xxxx of 135 Vale Avenue, Mansfield, Richland County, Ohio, was trafficking in drugs. RM47928.

3. On March 25, 2002, XXXXXXX contacted the METRICH Enforcement Unit and stated that Lyna Brooks of 135 Vale Avenue, Mansfield, Richland County, Ohio was trafficking in cocaine and crack cocaine. RM 48249

4. On March 30, 2001, XXXXXXX contacted the METRICH Enforcement Unit and stated that Lyna Brooks was trafficking in crack cocaine. RM46130

5. On July 8, 2005, XXXXXXX contacted the METRICH Enforcement Unit and stated that Lyna Brooks of 135 Vale Avenue, Mansfield, Richland County, Ohio is trafficking in crack cocaine. RM 73153

6. On February 8, 2005, XXXXXXX contacted the METRICH Enforcement Unit and stated that drugs were being sold from the residence located at 135 Vale Avenue, Mansfield, Richland County, Ohio RM72005

7. On February 20, 2006, XXXXXX made a controlled drug buy of crack cocaine for the METRICH Enforcement Unit from Lyna Brooks. The evidence was submitted to the Mansfield Police Department Crime Laboratory and tested positive for cocaine base. MPD 5284-06

8. On February 21, 2006, XXXXXXXX made a controlled drug buy of crack cocaine for the METRICH Enforcement Unit from Lyna Brooks. The evidence was submitted to the Mansfield Police Department Crime Laboratory and tested positive for cocaine base. MPD 5401-06

9. On October 10, 2006, the affiant, made contact with Lyna Brooks at his residence located at 135 Vale Avenue, Mansfield, Richland County, Ohio in reference to an Indictment for Aggravated Trafficking in Crack Cocaine. Brooks was placed under arrest. The odor of marihuana was strong in the residence. When the affiant took Brooks into his bedroom to get shoes there were marihuana seeds located in the ashtray in plainview Brooks stated this bedroom belonged to him and was on the first floor, south side of the house. In Brooks rear hip pocket was $ 1,000 in United States currency. Brooks refused a consent to search.

[paragraphs 10 and 11 are omitted]

9. [should be paragraph number 12] In the past C.I. 00-28 has provided valuable information to the METRICH Enforcement Unit which has been independently corroborated and proven reliable. C.I. 00-28 has also made controlled purchases for the METRICH Enforcement Unit which has resulted in the arrest and conviction of individuals on a variety of violations of the Ohio Revised Code.

In summary, the affidavit sets up the affiant's qualifications in paragraph 1. Then, in paragraphs 2 through 8, the affidavit describes a series of drug-related interactions with confidential informants that range from five years to six months before the date of the affidavit. In the first paragraph 9, the affidavit discusses what the officers observed that same day when they executed the arrest warrant on Brooks. Paragraphs 10 and 11 are irrelevant because they were left over from a different case. Finally, in the second paragraph 9, the affidavit attempts to establish the credibility of at least one of the confidential informants.

II.

The sole issue is whether the information in the affidavit was sufficient to support a magistrate's finding of probable cause to issue the search warrant. Brooks essentially argues that the information in paragraphs 2 through 8 is too stale to factor into the probable cause determination and that the remaining information in the first paragraph 9 is insufficient on its own to establish probable cause. The government responds by arguing that although the information in paragraphs 2 through 8 is not itself sufficient to establish probable cause, it is evidence of a pattern of criminal activity that corroborates the same-day information in the first paragraph 9. As for the first paragraph 9, the government contends that the information contained in that paragraph is, in and of itself, sufficient to establish probable cause and is only strengthened by the information in paragraphs 2 through 8. Finally, the government contends that, even if the affidavit was not sufficient to establish probable cause, the good-faith exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), nevertheless saves the search from the exclusionary rule.

A. Legal Standards

Whether a search warrant affidavit establishes probable cause to conduct the search is a legal question that this Court reviews de novo. United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005). In reviewing a magistrate's decision to issue a warrant, the Court must accord the magistrate's determination "great deference." United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc). On appeal of a district court's decision on a motion to suppress, although we must view the evidence "in a light most likely to support the decision of the district court," Frazier, 423 F.3d at 531 (citing United States v. Heath, 259 F.3d 522, 528 (6th Cir.2001)), "when the district court itself is a reviewing court, ... this court owes the district court's conclusions no particular deference." United States v. Weaver, 99 F.3d 1372, 1376 (...