U.S. v. Smith

• Citation: 549 F.3d 355
• Decision Date: 02 December 2008
• Docket Number: No. 07-5377.,07-5377.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrence Tyrone SMITH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

549 F.3d 355

UNITED STATES of America, Plaintiff-Appellee, v. Terrence Tyrone SMITH, Defendant-Appellant.

No. 07-5377.

United States Court of Appeals, Sixth Circuit.

Argued: October 22, 2008.

Decided and Filed: December 2, 2008.

ARGUED: Wende C. Cross, W.C. Cross & Associates, Cincinnati, Ohio, for Appellant. James E. Arehart, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Wende C. Cross, W.C. Cross & Associates, Cincinnati, Ohio, for Appellant. Charles P. Wisdom, Jr., Andrew Sparks, Assistant United States Attorneys, Lexington, Kentucky, for Appellee.

Before: BOGGS, Chief Judge; and MERRITT and GRIFFIN, Circuit Judges.

BOGGS, C.J., delivered the opinion of the court, in which GRIFFIN, J., joined. MERRITT, J. (p. 363-64), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

Defendant Terrence Tyrone Smith appeals from the district court's denial of his motion to suppress the evidence underlying his guilty plea to two counts of possession with intent to distribute five grams or more of cocaine base. Smith also appeals from the district court's sentence of 240 months, based in part on the court's determination that Smith was a career offender. We hold that police officers had probable cause to arrest Smith and search him incident to the arrest, and that Smith was a career offender under the Sentencing Guidelines. Therefore, we affirm.

I

A

On March 22, 2005, Kentucky State Police (KSP) executed a controlled buy of 45 grams of crack cocaine from Smith in Lexington, Kentucky. The buy "utilized an undercover police officer and a cooperating confidential source" (Source A).

On or about April 25, 2005, Source A informed KSP that Smith was "on the way to Hazard" with crack cocaine. The police arranged for a second confidential source (Source B) to sit with KSP at the outskirts of Hazard and identify Smith's vehicle, if and when Smith entered Hazard. Source B was the girlfriend of Source A, and was familiar with Smith, Smith's history, and Smith's vehicles. Police deemed Source A and B to be "factual and believable," because they had worked "about 250 drug cases" around the years 2004 and 2005. Source B identified Smith's vehicle as it entered Hazard. KSP Trooper Miller, who operated a special canine unit and was advised about Smith's suspected drug activity, stopped Smith's vehicle because it failed to signal at a turn, at approximately 1:00 p.m. Smith was the driver of the vehicle; Ronnie Campbell was a passenger. Smith did not dispute that he failed to signal a turn.

When Trooper Miller approached the vehicle and spoke to the occupants, he noticed that Smith's zipper was unzipped and that he kept "tugging and pulling" at his crotch area. Miller received Smith's permission to search the vehicle, and proceeded to walk his canine, "Balco," around the exterior of the vehicle before searching the interior. Balco did not "alert." Miller also "conferred separately with passenger Campbell," who informed Miller that "the dope" was on Smith's body. Detective Fugate recalled Miller stating that Campbell specifically indicated Smith's crotch area as the place where drugs were hidden. However, in his telephone testimony at the suppression hearing, Campbell denied making any statements about Smith's possession of drugs.

Miller then walked Balco around Smith. Although Balco did not alert, Miller testified that the dog's "demeanor" changed when he stuck his snout in Smith's crotch area. Miller stated that Balco is not trained to alert — to bite and scratch at the area where drugs are hidden — at a human being, and the change of the dog's demeanor suggested to Miller that Campbell's information about the location of the drugs was accurate. Balco also did not alert inside the vehicle, but showed the same change of demeanor at the driver's seat. Campbell consented to a search of his person, while Smith did not, specifically refusing to drop his pants to permit Miller to check for hidden drugs.

At approximately 1:30 to 1:45 p.m. Miller contacted Detective Fugate, who sought to secure a state search warrant. While Fugate pursued the warrant, Miller transported Smith and Campbell to a KSP post, placing handcuffs on Smith at some point prior to delivering him to the post. A warrant for the search of the vehicle and of Smith was issued at 3:01 p.m., pursuant to the following affidavit:

Affiant has been an officer in the aforementioned agency for a period of 10 years and the information and observations contained herein were received and made in his capacity as an officer thereof.

On the 25 day of April, 2005, at approximately 0800 a.m., affiant received information from: A KSP cooperating witness who state they received information that Terrence T. Smith was traveling to Hazard Kentucky on the same with with [sic] at least one ounce of "Crack" Cocaine.

Acting on the information received, affiant conducted following independent investigation: On 03-22-05, units from the Hazard HIDTA Drug Task Force, purchased two ounces of "Crack" Cocaine From Terrence T. Smith using a cooperating witness. Terrence T. Smith has (2) two drug related arrest [sic].

Approximately 34.1 grams of crack cocaine was discovered inside a sock hidden in Smith's underwear.

B

Smith was indicted on two counts of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1). On October 20, 2006, Smith moved to suppress the evidence seized as a result of the April 25 traffic stop and subsequent search at the KSP post. The district court denied the motion on November 22, 2006. The court agreed that Detective Fugate's warrant affidavit did not establish probable cause, but that a Leon good-faith exception saved the evidence from suppression. Moreover, the district court determined that the officers had probable cause to arrest Smith and could lawfully search him incident to the arrest. On March 7, 2007, Smith entered a conditional guilty plea to both counts, reserving the right to appeal the denial of his motion to suppress and any sentence above 120 months. At a March 7, 2007 sentencing hearing, the district court determined that Smith was a career offender as a result of two qualifying unrelated convictions. Accordingly, Smith was sentenced to 240 months of imprisonment, below the advisory Guidelines range of 292 to 365 months.

II

A

In reviewing a district court's decision on a suppression motion, we review findings of fact for clear error and legal conclusions de novo. United States v. Moon, 513 F.3d 527, 536 (6th Cir.2008). "When considering the denial of a suppression motion, we must view the evidence in the light most favorable to the government." United States v. Montgomery, 377 F.3d 582 (6th Cir.2004). In addition, "[w]e may affirm a decision of the district court if correct for any reason...." Ibid. (internal quotation marks omitted).

Smith argues that the crack cocaine discovered in the course of the April 25 search should be suppressed, because the warrant affidavit authorizing the search was "bare-bones," making a Leon good-faith exception inapplicable. The district court held that although Detective Fugate's affidavit fails to establish probable cause, the Leon good-faith exception "validates the search and the officers' reliance on an otherwise invalid search warrant."

B

Warrantless searches violate the Fourth Amendment's guarantee against unreasonable searches and seizures, with "only a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A search "incident to a lawful arrest" is among the exceptions. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685, (1969). Whether or not a Leon good-faith exception saves the evidence discovered by police officers acting on a deficient warrant affidavit is immaterial, if officers had probable cause to arrest Smith and search him incident to the arrest. We hold that there was probable cause to arrest Smith, and that he was lawfully searched incident to his arrest.

First, to determine whether probable cause exists to arrest a suspect, "we must determine whether at that moment the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that [a suspect] had committed or [was] committing an offense." United States v. Romero, 452 F.3d 610, 615 (6th Cir.2006) (internal citations and alterations omitted). Shortly after the traffic stop, Trooper Miller knew the following facts:

1. A controlled buy of crack cocaine from Smith took place on March 22, 2005, involving Source A.

2. On the day of the traffic stop, according to Source A, Smith was supposed to be on the way to Hazard, transporting drugs.

3. Smith's vehicle was identified upon entry into Hazard by Source B.

4. Source A and B had a long track record of reliability.

5. After the stop, Smith's pants were unzipped and he was "tugging and pulling" at his crotch; on the basis of his experience, Miller knew that drug traffickers commonly hide contraband in the crotch area.

6. Passenger Campbell informed Miller that Smith had drugs hidden in his crotch area.

7. Miller's search of the vehicle based on Smith's consent yielded no drugs, but Balco changed "demeanor" when sniffing Smith's crotch, and a similar demeanor change when sniffing Smith's seat in the car.

It is true that in his telephone testimony at the suppression hearing Campbell denied making any statements about Smith's possession of drugs and it is true that Balco did not actively "alert" on Smith. These facts notwithstanding, the magistrate judge found and the district court agreed that Campbell's inconsistent telephone testimony was not believable and that Trooper Miller's explanation of Balco's expected behavior was convincing. These factual assessments of the...