U.S. v. May
| Decision Date | 23 February 2005 |
| Docket Number | No. 03-4314.,03-4314. |
| Citation | 399 F.3d 817 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terrence C. MAY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Paul F. Adamson, Burdon & Merlitti, Akron, Ohio, for Appellant. Thomas M. Bauer, Assistant United States Attorney, Akron, Ohio, for Appellee. ON BRIEF: Paul F. Adamson, Burdon & Merlitti, Akron, Ohio, for Appellant. Thomas M. Bauer, Assistant United States Attorney, Akron, Ohio, for Appellee.
Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; SARGUS, District Judge.*
Terrence May was arrested when law enforcement agents raided his home and seized 250 grams of crack cocaine. After the district court denied his motion to suppress the evidence, May entered a conditional guilty plea to the charge of possession of cocaine base (crack) with the intent to distribute. He was sentenced to 120 months in prison, placed on five years of supervised release, and required to pay a $2,000 fine. On appeal, May contends that the district court erred in denying his motion to suppress because the affidavit underlying the search warrant for his home was insufficient to support a finding of probable cause, and because the officers executing the search warrant failed to obey the "knock and announce" rule. He also challenges the district court's refusal to grant a downward departure after alleged "sentencing entrapment" by the government. For the reasons set forth below, we AFFIRM the judgment of the district court.
In January of 2002, Officer Jeffrey Allen received information from Benji Brown, a confidential informant, that May possessed a large amount of powder cocaine. Brown reported that he had been contacted by May for the purpose of coming to May's residence to "cook" the powder cocaine into crack. May had presumably called Brown because Brown was well known in local drug-trafficking circles as a person skilled in cooking powder cocaine into crack, a form of cocaine with a much higher street value. In the six months prior to his tip regarding May's alleged involvement in illegal drug activity, Brown had been providing reliable drug-related information to law enforcement authorities.
The day after learning from Brown that May was allegedly in possession of a large amount of powder cocaine, Officer Allen and FBI Special Agent James McCann met with Brown. They searched him and his vehicle, placed a body recorder on him, gave him a cellular telephone, outfitted him with crack- cooking utensils, and then followed him as he drove to May's residence. After watching Brown pull into the driveway and enter the house, Officer Allen and Agent McCann left May's residence to prepare an affidavit in support of a search warrant. Before completing the affidavit, Officer Allen called Brown on the cellular telephone and learned, through a coded conversation, that he was engaged in cooking approximately nine ounces of cocaine for May. Officer Allen then provided an Ohio Common Pleas judge with a sworn affidavit that identified the residence to be searched, detailed May's physical appearance and criminal history, and described the suspected criminal activity as follows:
On August 16, 1999, the structure at 130 E. Warren Ave., Youngstown, Ohio was searched in an effort to locate and arrest Terrence C. May. A consent to search the premises was obtained and three weapons and suspected marijuana were seized.
On or about January 31, 2002, a cooperating source advised that Terrence May was obtaining a large amount of powder cocaine from an unknown location. The cooperating source stated that Terrence May would have the cocaine cooked into crack cocaine at 130 E. Warren Ave. utilizing Benji Brown to cook the cocaine. The Affiant knows Brown to be involved in drug-related activity based on unrelated drug investigations.
On February 1, 2002, a cooperating source advised that Terrence May was currently present at 130 E. Warren Ave., Youngstown, Ohio with Benji Brown and are in the process of cooking powder cocaine into crack cocaine. Task Force officers conducting surveillance of 130 E. Warren Ave. showed Benji Brown entering 130 E. Warren Ave., Youngstown Ohio.
Officers of the Mahoning Valley Drug Task Force (MVDTF) and [Officer Allen] have received information concerning TERRENCE C. MAY and the aforesaid illegal narcotics business from a cooperating source. [Officer Allen] believes the cooperating source's information to be reliable because the source has furnished information to the MVDTF and [Officer Allen] for a period of six months and has worked with [Officer Allen] in the investigation of this matter. The information and assistance provided by the cooperating source has been corroborated by independent investigation by the MVDTF and [Officer Allen]. The cooperating source has provided assistance in unrelated drug investigation cases. For the reasons stated, [Officer Allen] believes the cooperating source to be reliable.
The "cooperating source" referenced in the affidavit was actually Brown, although he was not identified in the affidavit as such in order to protect his identity as the informant. Officer Allen testified that he disclosed this information to the issuing judge, but he was not under oath at the time, and the district court declined to consider the testimony.
As soon as the judge issued the search warrant, Agent McCann called the entry team, which was positioned in an unmarked van outside of May's residence, and ordered them to execute the warrant. The leader of the team, Officer Steven Woodberry, testified that the police officers exited the van, approached the house yelling "police department, search warrant," knocked at least two times, and then waited for at least 15 seconds before forcing the door open with a battering ram. Officer Allen and Agent McCann arrived back on the scene a few minutes later and seized 10 to 12 ounces of crack cocaine and a .38-caliber revolver from May's residence. May was arrested and later indicted on one count of possessing approximately 250 grams of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). This timely appeal followed.
"This Court reviews a district court's decision on a motion to suppress evidence under two complementary standards." United States v. Miller, 314 F.3d 265, 267 (6th Cir.2002). The district court's factual findings are upheld unless they are clearly erroneous, but its "legal conclusions as to the existence of probable cause are reviewed de novo." United States v. Combs, 369 F.3d 925, 937 (6th Cir.2004). In reviewing the district court's determination that an affidavit was sufficient to support the issuance of a search warrant, however, this court is required to give "great deference" to the issuing judge's findings of probable cause. United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc).
A court must look to the "totality of the circumstances," including a confidential informant's "veracity, reliability, and basis of knowledge," in order to answer "the commonsense, practical question" of whether an affidavit is sufficient to support a finding of probable cause. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quotation marks omitted). This court has declared that an affidavit is sufficient "where a known person, named to the magistrate, to whose reliability an officer attests with some detail, states that he has seen a particular crime and particular evidence, in the recent past, [such that] a neutral and detached magistrate may believe that evidence of a crime will be found." Allen, 211 F.3d at 976 (emphasis in original).
On appeal, May contends that Officer Allen's affidavit was insufficient for the following three reasons: (1) nowhere does the affidavit state that the issuing judge was told the name of the cooperating source, (2) the affidavit contains no corroboration for the cooperating source's statements other than his own presence at the scene, and (3) nowhere does the affidavit state that the cooperating source had provided reliable information in the past with regard to drug activity. We will address each of these arguments in turn.
An informant's tip is considered to have greater reliability, and therefore to be more supportive of a finding of probable cause, if the affidavit avers that the name of the confidential informant has been disclosed to the issuing judge. See United States v. Helton, 314 F.3d 812, 820 (6th Cir.2003) (). This is so largely because the informant's recitation to the police, "if fabricated[,] would subject him to criminal liability." Gates, 462 U.S. at 233, 103 S.Ct. 2317.
In order for a confidential informant to be deemed "known," however, the affidavit must acknowledge that the police know the informant's identity or that the identity has been disclosed under oath to the issuing judge. See Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (); Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) () (emphasis in original).
The affidavit in the present case does not reveal that Brown was in fact...
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