U.S. v. Watkins, 97-6232

• Citation: 179 F.3d 489
• Decision Date: 10 June 1999
• Docket Number: No. 97-6232,97-6232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie WATKINS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

179 F.3d 489

UNITED STATES of America, Plaintiff-Appellee, v. Willie WATKINS, Defendant-Appellant.

No. 97-6232.

United States Court of Appeals Sixth Circuit.

Submitted Dec. 11, 1998.

Decided June 10, 1999.

Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 96-00058--Jennifer B. Coffman, District Judge.

Fred F. White (briefed), London, Kentucky, for Appellant.

R. Michael Murphy (briefed), Office of the U.S. Attorney, London, Kentucky, for Appellee.

Before: BOGGS and MOORE, Circuit Judges; DOWD, District Judge. ^*

DOWD, District Judge, delivered the opinion of the court. BOGGS, J. (pp. 29-30), delivered a separate concurring opinion. MOORE, J. (pp. 31-33), delivered a separate opinion dissenting in part.

DOWD, District Judge.

The defendant-appellant Willie Watkins ("defendant") appeals his conviction on five drug counts and the resulting sentence of 210 months. On appeal, he challenges the district court's denial of his motion to suppress the fruits of a search that produced evidence of two of the offenses. He also challenges the district court's failure to depart downward from the sentencing guidelines based on diminished capacity, acceptance of responsibility, and sentencing entrapment. He challenges the district court's use of a 100-to-1 ratio (crack cocaine, compared to cocaine powder) for calculating the quantity of drugs for sentencing purposes. Finally, he claims that the district court gave an incorrect response to a question asked by the jury during deliberation.

I.

Although several issues have been raised, the primary thrust of the appeal focuses on the denial of defendant's motion to suppress both the cocaine powder and the crack cocaine seized during the execution of a search warrant. The affidavit for the issuance of the search warrant did not specifically identify the house where cocaine powder and crack cocaine were located and seized. The seizure in the unnamed house of 57.25 grams of crack cocaine and 54.42 grams of cocaine powder constituted the basis for Counts Nine and Ten in the superseding indictment, of which Watkins stands convicted. Watkins was also convicted of Count One (conspiracy to possess and distribute both cocaine powder and cocaine base), Count Two (possession of cocaine with intent to distribute), and Count Three (possession of cocaine base with intent to distribute). ¹ The proof offered to support the convictions of Counts One, Two, and Three was based on the testimony of Tammy Mullins, a confidential informant who had bought cocaine powder and crack cocaine from Watkins prior to the challenged search of August 29, 1996. The purchases by Ms. Mullins prior to the search were described in the six-page affidavit submitted by FBI agent John Parrish in support of the application for the search warrant.

We first consider whether the motion to suppress the fruits of the search of the unnamed house should have been granted. Thereafter, we shall consider the remaining issues raised by defendant.

A.

On August 29, 1996, FBI agents applied for a search warrant. The warrant identified a specific residence of one Keith Louis, in which defendant was living; however, it failed to identify the second, uninhabited, house on the Louis property where the cocaine powder and cocaine base forming the basis of two of defendant's convictions were eventually located and seized. The supporting six-page affidavit submitted by Agent John Parrish alleged in detail a number of instances of criminal drug-related activity that had occurred in the residence of defendant and Louis and some that had occurred away from the property altogether, all as observed by a confidential informant used in the investigation. ² The affidavit contained no reports that the informant had observed any illegal activity on any part of the property other than inside the house in which defendant and Mr. Louis lived, nor did it contain any reports that the informant had any reason to believe that such activity had occurred on any other part of the property (with the exception of certain activity, like possession, necessarily occurring in a vehicle on the property or between the residence and driveway when defendant and/or Mr. Louis would leave or arrive at the residence). The affidavit concluded with a statement expressing Agent Parrish's "belie[f]":

based on his experience with individuals that traffic in controlled substances that in the Louis residence, his private vehicles, garages, structures, barns, sheds, and any and all out buildings and appurtenances located on the property, being under the care ... and control of Keith Louis, is evidence of controlled substances, namely cocaine and crack cocaine and other evidence of Louis' and Walker's [sic] trafficking in cocaine, such as records reflecting sales and purchases of cocaine and other items used to possess, dispense and distribute a controlled substance, and proceeds from the sale of a controlled substance or substances.

Defendant argues that the district court incorrectly denied his motion to suppress the results of the search of the second house conducted on August 29, 1996. He argues that the search of the second house was unreasonable under the Fourth Amendment. First, he asserts, it was not listed in the search warrant as the place to be searched. The warrant specifically referred only to a "white two-story frame house with black shutters." Since there were no exigent circumstances, which the Government conceded, this made the search of the second house warrantless and, therefore, unreasonable.

Second, defendant argues that the search of the second house was not supported by probable cause because there was no connection made in either the warrant or affidavit between the second house and illegal activity. Third, the reference in the affidavit contained the boilerplate language, "garages, structures, barns, sheds, and any and all out buildings and appurtenances," which, if deemed to include the second house, failed to describe such house with sufficient particularity to satisfy constitutional standards, since the house at issue was "a separate dwelling." ³

Finally, according to defendant, the good faith exception to the exclusionary rule does not apply here because neither the warrant nor the affidavit described the second house sufficiently and neither the warrant nor the affidavit mentioned any connection between the second house and illegal activity. Therefore, defendant asserts, "the Magistrate who issued the warrant can not be said to have considered the issue of probable cause as to those premises and the officers can not be said to have acted with objectively reasonable good faith."

The Government argues that the affidavit described the second house by referring to "structures ... and all outbuildings and appurtenances located on the property, being under the care and control of Keith Louis ..."; that the officers who conducted the search were informed by Agent Parrish at a pre-search conference that both the main house and the second house were included in the premises to be searched, and were given a map showing both houses; and that the officers knew that Mr. Louis had an ownership interest in both houses.

The Government also argues that the good faith exception applies. It claims that officers' knowledge can cure insufficiencies in a warrant, and that they may rely on fellow officers for information. Since the officers here were told that the second house was to be searched under the warrant, they were given a map showing that house, and the supporting affidavit referred to outbuildings and other structures, their search of that house was "objectively reasonable."

"When reviewing decisions on motions to suppress, this court will uphold the factual findings of the district court unless clearly erroneous, while legal conclusions are reviewed de novo." United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir.1996) (citing United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993)).

"The standard of review for this Court in determining whether a search warrant describes the place to be searched with sufficient particularity is a de novo review." United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3242, 106 L.Ed.2d 590 (1989). Whether the good-faith exception of United States v. Leon, 468 U.S. 897 (1984), applies to a search is also reviewed de novo. United States v. Durk, 149 F.3d 464, 465 (6th Cir.1998).

"The test for determining whether the description in the warrant is sufficient to satisfy the particularity requirement [of the Fourth Amendment] is whether 'the description is such that the officers with a search warrant can with reasonable effort ascertain and identify the place intended.' " Gahagan, 865 F.2d at 1496 (quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925) and United States v. Votteller, 544 F.2d 1355, 1362 (6th Cir.1976)).

If a warrant fails to describe with sufficient particularity a place to be searched, a supporting affidavit incorporated into the warrant can cure the insufficiency if the affidavit describes the place with sufficient particularity. Gahagan, 865 F.2d at 1497. If the affidavit does not cure the warrant's insufficiency, the search may still be upheld under the good-faith exception of United States v. Leon, 468 U.S. 897 (1984). Id. at 1496. ⁴

If probable cause is found to be lacking in a search warrant, the good-faith exception will apply to uphold the search unless the evidence is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Brown, 147 F.3d 477, 485 (6th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 270, 142 L.Ed.2d 223 (1998) (quoting Leon, 468 U.S. at 923).

The warrant in this case failed to describe the second house at all. ⁵ The affidavit, however, which included a statement that evidence of illegal...