U.S. v. Smith

• Citation: 510 F.3d 641
• Decision Date: 26 December 2007
• Docket Number: No. 06-2525.,06-2525.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lakento Brian SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

510 F.3d 641

UNITED STATES of America, Plaintiff-Appellee, v. Lakento Brian SMITH, Defendant-Appellant.

No. 06-2525.

United States Court of Appeals, Sixth Circuit.

Argued: October 23, 2007.

Decided and Filed: December 26, 2007.

ARGUED: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Phillip J. Green, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Phillip J. Green, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

On November 8, 2006, a jury found defendant-appellant Lakento Brian Smith guilty of a number of drug-trafficking and firearm-possession charges. At a suppression hearing held prior to Smith's jury trial, the district court denied Smith's motion to suppress evidence seized from his residence during the execution of a search warrant, as well as evidence seized from his vehicle during a warrantless search. On appeal, Smith contends that the district court erred in admitting this evidence. For the reasons set forth below, we affirm the judgment of the district court.

I.

The search and seizure of evidence in Smith's residence and vehicle was the culmination of a seven-month investigation conducted by the Drug Enforcement Administration ("DEA") and the West Michigan Enforcement Team ("WEMET"), a multi-jurisdictional drug unit operating under the Michigan State Police. The investigation of Smith was precipitated by the arrival of two suspicious packages at a United Parcel Service ("UPS") location in Romulus, Michigan, on March 18, 2005. Upon receipt of these packages, which were addressed to Toriano Green, UPS contacted the DEA. The DEA opened the packages after obtaining a search warrant and found that they contained approximately three kilograms of cocaine. On the same day, UPS delivered the packages to the recipient, Green, who was subsequently arrested. Green agreed to cooperate with the DEA by contacting the person for whom the packages were ultimately intended; this individual, Marquan Wilson, was arrested when he accepted the packages from Green. One of two cellular phones in Wilson's possession contained the telephone number of the defendant, Smith, in its address book; eleven calls were placed between Wilson's and Smith's telephones on March 18—when the packages were received—and March 19—when Wilson was arrested.

After Wilson's arrest, the DEA began collaborating with the WEMET on an investigation of Smith. Together, the DEA and the WEMET conducted a number of interviews of cooperating individuals, as well as an investigation into Smith's finances. On June 20, 2005, Opey McGee, a drug-trafficking defendant in Muskegon County, Michigan, told investigators that Wilson was the source of Smith's drug supply. McGee also stated that Smith possessed $33,000 in stolen cash, guns, and clothing. On August 31, 2005, Kevin Lattimore, a defendant in a pending federal case, told investigators that Smith was a major distributor of crack cocaine in Muskegon. Lattimore identified Tyree Brown as one of the individuals who sold drugs on Smith's behalf. Additionally, Lattimore stated that he had observed Smith driving around with approximately one kilogram of cocaine. On September 13, 2005, Ricky Farmer, a defendant awaiting sentencing in Muskegon County, also stated that Wilson supplied drugs to Smith. Farmer allowed Smith to "cook" crack cocaine at his house from December 2004 to April 2005. In exchange, Smith provided Farmer with crack cocaine. Farmer stated that Smith always arrived at his house in a 2003 cream-colored Cadillac DTS but noted that Smith also owned a Corvette and a Monte Carlo, all of which were purchased with cash. Farmer advised that Smith lived with Angela Savage in the Hackley Glen area of Muskegon and that he had numerous weapons. Although Smith held a job for a short time after being released from his previous prison term, Farmer noted, he had not been employed since.

The DEA and the WEMET attempted to corroborate the information obtained in these interviews. The DEA verified that three vehicles with no outstanding liens on them were registered to Smith: a Corvette, a Monte Carlo, and a Ford station wagon. The DEA also confirmed Smith's address in the Hackley Glen neighborhood.

Meanwhile, the WEMET cultivated a relationship with a confidential informant ("CI") to facilitate the investigation of Smith. Detective Timothy Lewkowski of the WEMET, the principal officer involved in the Smith investigation, utilized the CI to purchase drugs from Smith's organization. The CI made purchases from Smith and his associates, including Tyree Brown (also known as "Reefer"), Marlando West (also known as "Little Mannie"), and Mark Graham.

One such controlled purchase transpired on June 28, 2005, when the CI informed investigators that Smith had contacted him. Smith informed the CI that he could provide him with cocaine. The money for the purchase was to be deposited at Smith's residence at 1484 Albert Street in Muskegon, Michigan.¹ When the CI delivered the purchase money, Smith was not home, but a vehicle, a Monte Carlo belonging to Smith, was driven to the residence during the transaction. The CI reported that the drugs were not actually transferred at the time; several days later, on July 1, Marlando West advised the CI to go to 743 Amity—Tyree Brown's residence—to obtain the cocaine.

On July 3, 2005, the CI informed investigators that Smith had offered to sell two ounces of cocaine to him. The CI gave the purchase money to Mark Graham at 743 Amity. Tyree Brown contacted the CI two days later and told him to pick up the cocaine at 743 Amity. Investigators conducting surveillance of 743 Amity during this transaction observed Smith's Monte Carlo parked in front of the residence but did not see Smith himself.

On August 29, 2005, the CI and Smith discussed the purchase of two ounces of cocaine. Smith again instructed the CI to go to 743 Amity, and the CI believed that Smith would be present on this occasion. Once the CI arrived, however, individuals in front of the residence informed him that Smith had left the location because he believed that the DEA was investigating his organization. The CI then purchased cocaine from an individual at 743 Amity.

Yet another controlled purchase occurred on October 6, 2005. The CI contacted Smith via cellular phone, and Lewkowski listened to the conversation. Smith and the CI determined that they would meet on Oak Street, near Williams Street, to conduct a cocaine purchase. The rendezvous occurred as planned, and, according to the CI, Smith was driving the vehicle that arrived at the agreed-upon location. The investigators observing the transaction did not see Smith, however, as they had lost sight of the vehicle. The CI stated that Smith directly sold him the cocaine in this transaction.

On October 25, 2005, a WEMET detective received an anonymous tip informing him that Smith had received a large shipment of cocaine, which he was storing at 1484 Albert. The tipster also noted that Smith was driving a brown Yukon/SUV-type vehicle. Lewkowski then began surveillance for this vehicle at 1484 Albert. After observing the vehicle at the residence, the detective determined that its license plate was registered to Smith.

Lewkowski obtained a search warrant for 1484 Albert on October 27, 2005. On the same day, Lewkowski discussed the warrant with Agent Kent Kleinschmidt of the DEA. In particular, the investigators discussed whether assets should be seized at the residence during the execution of the warrant. Kleinschmidt opined that the controlled buys and the information obtained from the joint DEA-WEMET investigation of Smith gave the investigators probable cause to seize Smith's assets for forfeiture as drug trade proceeds. The investigators agreed that during the execution of the warrant, officers would seize any vehicles found that were registered to or owned by Smith.

Lewkowski served as the affiant for the search warrant. In the affidavit, Lewkowski stated that he had twelve years of experience as an officer and had been investigating drug trafficking for seven years. Lewkowski explained that he had used the CI to make eight controlled drug buys and that these buys had resulted in two search warrants and four arrest warrants. He noted the CI had informed him that Smith deals in large amounts of cocaine, and that when Smith receives a large shipment of cocaine, he stores it at 1484 Albert. Lewkowski recounted two incidents, one of which had taken place two days earlier, in which the CI was in the company of a person known as "S 1"; although the CI did not witness the actual drug transactions, on both occasions, the CI observed that S1 entered 1484 Albert with no cocaine in his possession and exited the residence with cocaine. Also noted in the affidavit was the anonymous tip, described above, regarding the arrival of a shipment of cocaine at 1484 Albert. Finally, Lewkowski recounted Smith's criminal history: Smith was convicted of cocaine-trafficking charges in 1994 and 1997. The warrant authorized the search of 1484 Albert and "any vehicles located on the premises."

Around 11:15 p.m. on October 27, the evening before officers executed the search warrant, Lewkowski drove by 1484 Albert. He observed three vehicles on the premises of the residence: a Yukon/SUV-type vehicle registered to Smith in the driveway, a cream-colored car in the driveway, and a green Pontiac Grand Am in the garage.

The execution of the warrant occurred in the early morning hours of October 28, 2005. Officers found a large quantity of cash, just over $17,000, in the residence, although they did not locate any of the marked money used by the CI to purchase cocaine. The money was hidden around the residence in odd places, such as in coats. Sandwich-sized plastic bags...