United States v. Archibald

• Decision Date: 22 August 2012
• Docket Number: No. 11–5488.,11–5488.
• Citation: 685 F.3d 553
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Robert Lee ARCHIBALD, Jr., aka Chan; Lolethia Muse; and Duantez Cornell Jenkins, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

685 F.3d 553

UNITED STATES of America, Plaintiff–Appellant,

v.Robert Lee ARCHIBALD, Jr., aka Chan; Lolethia Muse; and Duantez Cornell Jenkins, Defendants–Appellees.

No. 11–5488.

United States Court of Appeals, Sixth Circuit.

Argued: April 10, 2012.

Decided and Filed: July 11, 2012.

Rehearing and Rehearing En Banc Denied Aug. 22, 2012.

ARGUED: J. Alex Little, United States Attorney's Office, Nashville, Tennessee, for Appellant. Michael E. Terry, Terry & Gore, Nashville, Tennessee, for Appellees Archibald and Muse. ON BRIEF: J. Alex Little, United States Attorney's Office, Nashville, Tennessee, for Appellant. Michael E. Terry, Stephanie H. Gore, Terry & Gore, Nashville, Tennessee, Deanna Bell Johnson, Franklin, Tennessee, Joseph F. Edwards, Cookeville, Tennessee, for Appellees.

Before: BATCHELDER, Chief Judge; McKEAGUE, Circuit Judge; and

QUIST ^*, District Judge.

OPINION

ALICE M. BATCHELDER, Chief Judge.

The government appeals the district court's order suppressing evidence found as a result of a state-issued search warrant. Because we find that the search warrant was valid and the officers executed it in accordance with the Constitution, we REVERSE the district court's suppression order.

I.

On May 20, 2008, Michael Wilson, an officer with the Nashville Police Department, arrested a woman for solicitation of prostitution. The woman had worked as an informant for the Department in the past. In an effort to avoid the solicitation charge, the woman accepted Officer Wilson's offer to cooperate as a confidential informant in a controlled buy of crack cocaine. Later that evening, the informant purchased cocaine from 5A University Court, an apartment in Nashville, Tennessee.

On May 23, 2008, Officer Wilson presented an affidavit to a Tennessee state judge seeking a search warrant for Apartment 5A. The affidavit stated that a controlled purchase of an undisclosed amount of narcotics had occurred at that location within the last 72 hours with the cooperation of a confidential informant and that the informant had been “used in the past for successful recovery of illegal narcotics as well as the successful prosecution of such offenses.” It explained that the officers prepared the informant for the controlled purchase by searching her for contraband, giving her prerecorded money, and wiring her for audio surveillance. The affidavit further stated that the officers drove the informant to Apartment 5A and maintained physical surveillance of the premises while they monitored the audio wire on the informant. The affidavit stated that the officers would disclose the identity of the informant to the judge signing the warrant, but it did not give any further information about the informant or the controlled purchase. The state judge signed the search warrant at 11:10 a.m. the same day.

On May 28, 2008, five days after the state judge issued the warrant, officers executed the search at Apartment 5A. Defendants Archibald and Jenkins were in the premises when officers arrived. Officers discovered crack cocaine on Jenkins and a large amount of cash on Archibald. They also discovered a loaded pistol and a substantial piece of crack in the kitchen. A canine search of Archibald's car, which was in the driveway of the premises, revealed $12,000 cash.

The state of Tennessee indicted Defendants Archibald and Jenkins on state drug and weapons charges. The state eventually dismissed the indictment after the trial court suppressed the evidence, and the state appellate court affirmed.

On March 31, 2010, a federal grand jury indicted Defendants Archibald, Jenkins, and Defendant Muse, the leaseholder of Apartment 5A, on several charges including the use of a premises to manufacture controlled substances, possession with the intent to distribute cocaine near public housing, making false statements to federal agents, and possession of a firearm in furtherance of a drug-trafficking crime. Each defendant moved to suppress the evidence discovered from the May 23, 2008 search warrant. The district court granted the motion and suppressed the evidence, finding that the affidavit presented probable cause to search Apartment 5A, but the probable cause had gone stale by the time officers executed the warrant, eight days after the controlled buy. Also, without conducting a Franks analysis or hearing, the court concluded that the affidavit contained knowing or reckless falsities regarding the reliability of the informant.

The government has timely appealed the district court's suppression order.

II.

Preliminarily, we must address Defendant Jenkins's request that we consider an argument he presented to the district court regarding the preclusive effect of the Tennessee state courts' decisions suppressing the evidence. Specifically, Jenkins argues that the Full Faith and Credit Act prevents the government from relitigating the constitutionality of the search warrant because the Tennessee courts found that the warrant and search were unconstitutional. Jenkins presented this argument to the district court, which correctly rejected the claim because Jenkins had not established that a Tennessee court would give the previous courts' findings preclusive effect. See United States v. Dominguez, 359 F.3d 839, 841–42 (6th Cir.2004) (addressing a similarly-postured criminal case based on a state-issued-and-suppressed search warrant); see also Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 381–82, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). Jenkins presents this argument on appeal without filing a notice of cross-appeal. We have held that “the filing of a notice of cross-appeal is jurisdictional where an appellee wishes to attack part of a final judgment in order to enlarge his rights or to reduce those of his adversary,” which is precisely what Jenkins attempts with this argument. See Francis v. Clark Equip. Co., 993 F.2d 545, 552 (6th Cir.1993). Accordingly, Jenkins's claim is not properly before us, and we dismiss his argument for lack of jurisdiction. ¹

Turning to the merits of the government's arguments, we recognize that the district court suppressed the evidence because it determined that the probable cause in the affidavit had gone stale by the time the officers executed the warrant, eight days after it was issued. However, staleness is a concept that is meant to apply to information used for the issuance of a search warrant, not its execution; therefore, the more appropriate inquiry is whether the warrant was valid when it was issued and, separately, whether the officers properly executed the warrant.

A.

We review de novo the legal question of whether a search warrant affidavit establishes probable cause to search, and we give “ ‘great deference’ ” to the determination of the judge who issued the warrant. United States v. Brooks, 594 F.3d 488, 492 (6th Cir.2010) (quoting United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc)). Generally, we view the evidence in a light most likely to support the decision of the district court, but “ ‘when the district court itself is a reviewing court, this court owes the district court's conclusions no particular deference.’ ” Id. (internal alterations omitted) (quoting United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir.1996)). Looking only to the four corners of the affidavit, id., we will find probable cause to support a search warrant if the affidavit establishes “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We will uphold a probable cause determination if the issuing judge had a “substantial basis for concluding that a search would uncover evidence of wrongdoing,” id. at 236, 103 S.Ct. 2317 (internal alterations and quotation marks omitted), and we will reverse only if the issuing judge's determinations were arbitrarily exercised. Weaver, 99 F.3d at 1376.

The affidavit for Apartment 5A relies exclusively on the information of one confidential informant. Judges faced with this type of affidavit must consider the veracity, reliability, and basis of knowledge of the informant's information, Brooks, 594 F.3d at 493; but even “ ‘an affidavit that supplies little information concerning an informant's reliability may support a finding of probable cause, under the totality of the circumstances, if it includes sufficient corroborating information.’ ” United States v. Coffee, 434 F.3d 887, 893 (6th Cir.2006) (quoting United States v. Woosley, 361 F.3d 924, 927 (6th Cir.2004)). Moreover, “an ‘explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the informant's tip] to greater weight than might otherwise be the case.’ ” Weaver, 99 F.3d at 1377 (alteration in original) (quoting United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994)).

Here, the affidavit states that an informant made a controlled purchase of narcotics while under police surveillance, and it further describes the officers' arrangements for the controlled purchase. This is sufficient corroborating information from which the issuing judge derived a substantial basis for concluding that drugs would be found at Apartment 5A. See Coffee, 434 F.3d at 893–95 (finding probable cause in an affidavit that lacked any information regarding the reliability of the informant but which described the informant's purchase of drugs from the location to be searched and officers' arrangements for the controlled purchase). Defendant Archibald argues that the informant and affidavit were unreliable because the affiant had never met the informant before May 20, 2008, and the affidavit failed to inform the issuing judge that the informant was working off a criminal charge. These facts, however, are immaterial to whether the affidavit, as written, was sufficient to give the issuing judge a substantial basis to find probable cause. See id. at 892 (“Review of...