U.S. v. Ellison

• Decision Date: 11 February 2011
• Docket Number: No. 09–6078.,09–6078.
• Citation: 632 F.3d 347
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Reginald ELLISON, Sr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

632 F.3d 347

UNITED STATES of America, Plaintiff–Appellee,

v.Reginald ELLISON, Sr., Defendant–Appellant.

No. 09–6078.

United States Court of Appeals, Sixth Circuit.

Feb. 11, 2011.

ON BRIEF: Michael J. Flanagan, Nashville, Tennessee, for Appellant. Sunny A.M. Koshy, Assistant United States Attorney, Nashville, Tennessee, for Appellee.Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

OPINIONROGERS, Circuit Judge.

The only issue in this direct criminal appeal is the validity of a search warrant. The warrant was based on an affidavit describing a suspicious transaction observed by a confidential informant outside the house to be searched, and the only aspect of the warrant that the defendant challenges is the sufficiency of the nexus between the incriminating evidence and the place to be searched. Defendant Ellison was convicted of various federal drug and firearm offenses based on evidence discovered and seized pursuant to the warrant. Because the warrant averred a sufficient nexus between the criminal activity and the residence to be searched, suppression of the evidence was properly denied, and Ellison's convictions must accordingly be upheld.

On September 8, 2007, Detective Johnnie E. Melzoni, Jr., applied for a search warrant in the Davidson County, Tennessee, state court, relying in part on a tip from a confidential informant. According to the supporting affidavit, this informant, who was known to be reliable because of his assistance to the police in the past,¹ advised Detective Melzoni that he had observed, within the past seventy-two hours, two males known to the informant as “Red” and “Short” meet outside of a residence on Cedar Circle in Nashville, Tennessee, and complete a drug transaction. The affidavit stated:

The [confidential informant] observed “Short' ” exit a side door of the residence and meet with “Red”. While standing outside, “Short” did give “Red” a large quantity of cocaine in a plastic bag. After the deal was completed “Short” went backing [sic] into the residence and “Red” left the property.In the affidavit, Detective Melzoni further explained that, in his experience, “persons present at locations where illegal narcotics are sold and/or used often have contraband, narcotics paraphernalia, weapons, or other evidence of criminal conduct hidden on their persons or in their belongings,” and requested authorization to search the residence on Cedar Circle and any persons present on the premises.

The state court judge issued the warrant. Officers executed the search warrant on September 13, 2007, and found Ellison outside of the residence. During the search of the house, the officers seized various baggies of cocaine, crack cocaine, and marijuana; a loaded gun; ammunition; a pill bottle with about one hundred assorted prescription pills for which Ellison did not have a prescription; over $2000 in cash; and other drug paraphernalia for making and using crack cocaine. The officers also searched Ellison's person and found a handwritten ledger, which documented money paid and owed for controlled substances that he had distributed and which showed multiple $50 to $200 drug sales. In addition, while the officers were executing the search, a woman called Ellison and asked him to bring $20 worth of crack cocaine to another location for her to buy.

As the sole owner of the property, which adjoined a playground, Ellison was charged in federal court with 1) unlawfully, knowingly, and intentionally possessing with intent to distribute five grams or more of a mixture and substance containing a detectable amount of cocaine base within one thousand feet of the real property comprising a playground in violation of 21 U.S.C. §§ 841(a)(1) and 860; 2) knowingly using a place for the purpose of unlawfully manufacturing and using controlled substances in violation of 21 U.S.C. § 856(a)(1); 3) knowingly possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1); 4) being a convicted felon in knowing possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924; and 5) being a convicted felon in knowing possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924.

Ellison initially pleaded not guilty and moved to suppress all evidence seized upon the execution of the search warrant, alleging, among other things, that “[t]he affidavit in support of the search warrant fail[ed] to establish probable cause in that there exist[ed] no sufficient nexus between the evidence sought and the place to be searched.” The district court denied Ellison's motion to suppress, explaining that the affidavit “provided the issuing judge a substantial basis for finding an adequate nexus between the residence to be searched and evidence of drug sales.” The court also noted that the affidavit was not deficient for failing to “name the person selling the drugs or the owner of the property,” as “the Sixth Circuit has already rejected that argument too, holding that the affidavit in support of a search warrant does not need to contain that information.”

This ruling prompted Ellison to enter a plea agreement, changing his plea from not guilty to guilty on counts one, two, and four. In making this plea, Ellison reserved his right to challenge the district court's ruling on the motion to suppress on appeal. The court accepted this plea agreement and sentenced Ellison to 188 months' imprisonment on counts one and two; 120 months on count four, all to run concurrently; and an eight-year term of supervised release. Ellison now appeals the district court's ruling on his motion to suppress.

The district court properly denied Ellison's motion to suppress because the search warrant was supported by probable cause. Probable cause existed for the search of Ellison's residence and Ellison's person because the warrant affidavit established a nexus between the place to be searched and the evidence sought. See, e.g., United States v. Bethal, 245 Fed.Appx. 460, 464 (6th Cir.2007) (citing United States v. Van Shutters, 163 F.3d 331, 336–37 (6th Cir.1998)). Commission of a drug transaction outside of a house and one participant's walking back into the house, as observed in this case, plainly demonstrated a sufficient nexus with the house.

The affidavit explained that a confidential informant had observed someone come out of...