U.S. v. McPhearson

• Decision Date: 27 November 2006
• Docket Number: No. 05-5534.,05-5534.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Martedis McPHEARSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

469 F.3d 518

UNITED STATES of America, Plaintiff-Appellant, v. Martedis McPHEARSON, Defendant-Appellee.

No. 05-5534.

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2006.

Decided and Filed: November 27, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: R. Leigh Grinalds, Assistant United States Attorney, Jackson, Tennessee, for Appellant. Angela L. Pitts, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellee.

ON BRIEF:

R. Leigh Grinalds, Assistant United States Attorney, Jackson, Tennessee, for Appellant. J. Patten Brown III, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellee.

Before GIBBONS and ROGERS, Circuit Judges; HOLSCHUH, District Judge.^*

GIBBONS, J., delivered the opinion of the court, in which HOLSCHUH, D.J., joined. ROGERS, J. (p. 527), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

A grand jury returned an indictment charging Martedis McPhearson ("McPhearson") with possession of crack cocaine with intent to distribute, being a felon in possession of a firearm, and possession of a firearm during and in relation to a drug-trafficking crime. McPhearson filed a motion to suppress evidence seized from his residence. The United States District Court for the Western District of Tennessee granted McPhearson's motion. The government appeals the order granting the motion to suppress. For the following reasons, we affirm the district court's order.

I.

Charles Mathis ("Mathis") and Christopher Wiser ("Wiser"), investigators for the Jackson, Tennessee, police department, traveled on or about December 12, 2003, to a residence inhabited by McPhearson at 228 Shelby Street in Jackson. Mathis and Wiser went to arrest McPhearson on a warrant for simple assault after receiving information from Patrol Officer Maurice Willis that McPhearson was at home.

Mathis knocked on the front door, while Wiser secured the rear exit of the house. McPhearson answered the door and identified himself to Mathis. Mathis then arrested McPhearson on the front porch of the Shelby Street residence. After walking McPhearson to the police car, Wiser searched him incident to the arrest. The pat-down located crack cocaine in McPhearson's right front pocket. Mathis and Wiser asked McPhearson for permission to search his house, and McPhearson refused consent.¹

Wiser and Mathis decided to obtain a search warrant. Mathis contacted their supervisor, Lieutenant Patrick Willis, and provided him with information for the search warrant. After Lieutenant Willis drafted the search warrant, he and Mathis went to Judge Christy Little's house. Little is a juvenile court judge for Madison County, Tennessee. Judge Little examined the warrant drafted by Lieutenant Willis and the affidavit sworn by Mathis. The affidavit stated, in pertinent part:

Investigator Mathis, who makes oath that he has probable cause for believing and does believe that Martedis M. McPhearson ... is in possession of the following described property, to wit: Illegal controlled substances, particularly crack cocaine, records, ledgers, tapes, electronic media and other items which memorialize drug trafficking or proceeds therefrom contrary to the laws of the State of Tennessee .... [H]is reason for such belief and the probable cause for such belief are that the Affiant has: Investigator Mathis and Wiser, received information from Officer A. Willis that Martedis McPhearson was wanted for simple assault. Officer Willis located McPhearson's vehicle at 228 Shelby Street. Inv. Mathis and Wiser went to 228 Shelby Street and knocked on the door. A black male answered the door and identified himself to be Martedis McPhearson. Investigators informed McPhearson that they were taking him in custody on the simple assault warrant. McPhearson was searched prior to being placed in the police car for transport to booking. Investigator Wiser discovered in McPhearson's right front pocket a clear plastic bag containing a white chalky substance that is consistent with, and appeared to be crack cocaine,. [sic] The substance was field tested by Inv. Mathis. The field test showed positive for the presence of cocaine. The substance weighed 6.4 grams. E-911 records revealed that 228 Shelby is the residence of Martedis McPhearson. Being satisfied that there was probable cause, Judge Little signed a search warrant for 228 Shelby Street.

While Lieutenant Willis and Mathis were obtaining the search warrant, Wiser waited at 228 Shelby Street and called the police station for additional officers. Wiser knocked on the door of the house and advised two women who were inside that they could not leave because the police were obtaining a search warrant. He remained in the house with the women until Jackson police officer Tony Cepparulo ("Cepparulo") arrived. Cepparulo and Wiser then swept through the house "to clear the residence and make sure there was nobody in there with any kind of wyapons that could do any kind of harm to [them] or the other females that [sic] were in the house."²

After Wiser and Lieutenant Willis returned with the search warrant, the Jackson police conducted a full scale search of 228 Shelby Street. They uncovered distribution quantities of crack cocaine and firearms.

II.

McPhearson moved the district court to suppress the evidence seized in the protective sweep and search of his residence. After a suppression hearing, the district court granted the motion, focusing on the affidavit sworn by Mathis and its deficiencies. From the bench, the court said:

There are cases that have held that when the defendant is arrested at his residence with a large quantity of drugs, then that is an indication that there may have been drug paraphernalia in the house.

There are cases that hold that a person who is arrested at his home and gives deceptive answers to the policemen at the time of the arrest about where he had gotten the drugs or where he had been—deceptive answers along with an arrest with drugs in his pocket might be enough for probable cause.

The problem in this case though is that there's none of that in the affidavit. All the affidavit says, and I've read it carefully several times, basically, is that Mr. McPhearson was arrested on a simple assault warrant. He was taken into custody on that warrant. He was searched prior to being placed in the police car, and they discovered in his right front pocket a clear plastic bag containing crack cocaine, which weighed 6.4 grams. And this residence was the residence of McPhearson. And that's all. So I don't have these other issues that the other courts have held to be sufficient.

We still look at the Illinois v. Gates totality of the circumstances, and I don't think I can conclude that there was any evidence presented to Judge Little that there were drugs in the house. So it's my judgment that the Illinois—I'm sorry, that the search warrant was issued without probable cause.

Now, the next question becomes, how about the protective sweep, and is the evidence gathered during the protective sweep admissible. And it seems to me that they went to the house to get Mr. McPhearson. They got Mr. McPhearson. They had no indication that anything was going on in the house. A protective sweep was unnecessary. So the evidence seized during the investigative sweep is also suppressed.

Then I get to the Leon good-faith exception, and then I have to decide did the officers who served the search warrant have a good-faith belief in the validity of the warrant. . . .

. . . .

The more difficult issue in the Leon good-faith exception is where the supporting affidavit was nothing more than a bare-bones affidavit, so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. My reading of this affidavit indicates that it is a bare-bones affidavit. It doesn't offer any indication that drugs or drug paraphernalia were inside the house or that the officer had any reason to believe that they were inside the house.

Perhaps if the affidavit had said that based on this officer's experience in drug law enforcement, drug dealers often keep drug paraphernalia in their home, and one with 6.9 grams of crack cocaine likely had it for resale, and I, therefore, think there's something in the house—but none of that's here. It's a bare-bones affidavit; therefore, it's my judgment that the Leon good-faith exception does not apply. The defendant's motion to suppress is, therefore, granted.

The district court adhered to its ruling when the government filed a motion to reconsider.

The government appealed the district court's grant of the motion to suppress with respect to the evidence seized in the search but not with respect to the evidence seized in the protective sweep.

III.

The propriety of the protective sweep was considered by the district court but not raised by the government on appeal. Issues that were raised in the district court, but not on appeal, are considered abandoned and are not reviewable on appeal. See United States v. McClellan, 30 Fed.Appx. 340, 342 (6th Cir.2002) (citing Enertech Elec., Inc. v. Mahoning County Comm'rs, 85 F.3d 257, 259 (6th Cir.1996)) (applying waiver doctrine in a criminal case); see also Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir.2005) (holding that failure to appeal the summary judgment with respect to one claim constituted waiver). Therefore, the district court's invalidation of the protective sweep must stand. The only issues the government properly raised before this court are whether the search warrant validly issued on a showing of probable cause and, if not, whether the search could be saved by application of the good-faith exception to the exclusionary rule.

IV.

The Fourth Amendment provides that "no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to...