United States v. Brown

• Citation: 801 F.3d 679
• Decision Date: 11 September 2015
• Docket Number: No. 13–1761.,13–1761.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ricky BROWN, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

801 F.3d 679

UNITED STATES of America, Plaintiff–Appellee

v.Ricky BROWN, Defendant–Appellant.

No. 13–1761.

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2014.

Decided and Filed: Sept. 11, 2015.

ARGUED:Dennis G. Terez, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Stephanie M. Hays, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Dennis G. Terez, Melissa M. Salinas, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Stephanie M. Hays, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: CLAY and STRANCH, Circuit Judges; BLACK, District Judge.^*

STRANCH, J., delivered the opinion of the court in which BLACK, D.J., joined. CLAY, J. (pp. 693–94), delivered a separate dissenting opinion.

OPINION

STRANCH, Circuit Judge.

A jury convicted Ricky Brown of possession with intent to distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm after a previous conviction of a felony offense. On appeal, Brown challenges the denial of his motion to suppress evidence seized from his residence pursuant to a search warrant and two evidentiary rulings made by the district court. Although we note our concern that the search warrant affidavit supplied a tenuous nexus between drug trafficking and Brown's residence, we conclude under the totality of the circumstances that there was probable cause for the magistrate judge to issue the warrant. We also hold that the district court properly admitted a “drug ledger” into evidence at trial and excluded evidence concerning Brown's Michigan medical marijuana license. Accordingly, we AFFIRM the district court.

I. BACKGROUND

On March 30, 2011, DEA Agent Jeremy Fitch applied for a search warrant to search Brown's residence on Moross Road in Detroit, Michigan. The affidavit in support of the search warrant provided the following facts.

On March 8, 2011, a cooperating witness, identified as DEA1, provided information concerning the heroin trafficking activities of Marzell Middleton to DEA Detroit Agents and Task Force Officers assigned to Enforcement Group 3. DEA1 identified Middleton as a heroin trafficker in the Detroit metropolitan area and provided two cell phone numbers that DEA1 had used to contact Middleton. DEA1 further identified Middleton's residence on Helen Street in Detroit and stated that this residence served as the drug distribution point for Middleton.

On March 8, at the direction of DEA agents, DEA1 made a series of consensually recorded phone calls to Middleton to set up a purchase of one-half kilogram of heroin. Surveillance units were posted at Middleton's residence before, during, and after the phone calls were made. At approximately 5:30 p.m., agents noticed a Chevrolet Silverado parked at the residence. At approximately 5:46 p.m., Middleton agreed over the phone to deliver the heroin to DEA1 at a predetermined location in Monroe, Michigan.

At approximately 7:52 p.m., DEA1 placed another consensually recorded phone call to Middleton, who advised DEA1 that he was waiting for someone to arrive and then he would leave in “ten minutes” to meet with DEA1 and deliver the heroin. At approximately 7:30 p.m. (before the previously-described phone call), a Yukon Denali towing a black cargo trailer arrived at Middleton's Helen Street residence. Surveillance officers watched as three males got out of the Yukon and entered the residence through the north entry door. At approximately 7:50 p.m., the three males left the residence through the same door. One man had a large, dark-colored object in his hand, which he placed in the bed of the Chevrolet Silverado. The Silverado and the Yukon departed the residence and traveled to a gas station. After both vehicles were fueled, the men traveled together on Interstate 94 west to southbound I–75 into the Monroe, Michigan area.

Because the agents believed heroin was being transported to DEA1, they arranged for Michigan State Police (MSP) Troopers working in marked cars to execute simultaneous traffic stops of the Silverado and the Yukon. At approximately 9:00 p.m., MSP Trooper Peterson conducted a probable cause traffic stop of the Silverado and identified the sole occupant as Steven Patrick Woods. Woods was driving on a suspended Michigan driver's license and verbally consented to a search of the truck. A search revealed a black, plastic Dewalt power tool case in the bed of the truck. Inside the case was a clear plastic bag containing an off-white substance weighing approximately 565 gross grams. A field test indicated the presence of heroin. Trooper Peterson placed Woods under arrest for possession of heroin.

At approximately 9:01 p.m., MSP Troopers Kiser and Ziecina stopped the Yukon Denali. Trooper Ziecina identified the driver as Middleton and the passenger as the defendant, Brown. Both were arrested for attempted delivery of the heroin transported by Woods in the Silverado. Trooper Ziecina recovered four cell phones from the interior of the Yukon during an inventory search. One phone was assigned (313) 449–6872, the number DEA1 had used to contact Middleton to arrange the heroin delivery. Another phone was assigned the number DEA1 told agents was Middleton's second cell phone, (313) 461–4913. Agent Fitch concluded that the other two cell phones, (313) 254–8330 and (313) 564–9054, belonged to Brown because one of them, (313) 564–9054, listed Middleton's two cell phone numbers as contacts under “M Z.”

Following the arrests, all three men were booked at the MSP Post in Monroe. In answer to standard booking questions, Brown provided a residential address on Moross Road in Detroit. He possessed a Michigan driver's license listing the Moross Road address as his residence. Brown also possessed $4,813 in currency, which was seized for forfeiture under Michigan state law. Agent Fitch averred, based on his training and experience, that the large amount of unsecured cash found in Brown's possession was consistent with drug trafficking proceeds.

Task Force Officer Powell obtained a state search warrant for Middleton's residence on Helen Street. The warrant was executed at approximately 3:10 a.m. on March 9. The search turned up approximately 90 gross grams of suspected heroin. A 2002 GMC Yukon, bearing Michigan license plate 3KHR97 and registered to Brown, was parked on the street in front of the residence.¹ MSP Trooper Unterbrink allowed a drug dog to walk around the vehicle and climb into it. The dog alerted to the odor of narcotics inside Brown's vehicle. Agents seized the 2002 Yukon under Michigan forfeiture laws.

On March 17, nine days after Brown was arrested, Agent Fitch obtained a federal search warrant to search the contents of the four cell phones seized from the Yukon Denali on March 8. On one of the phones believed to belong to Brown, (313) 254–8330, Agent Fitch located a text message: “He said 1175 or 1125 for one.” Based on his training and experience, Agent Fitch averred that the text message was consistent with Detroit-area pricing for one ounce of cocaine. Sprint–Nextel disclosed that the subscriber information for the phone was “BOOST MOBILE.” According to Agent Fitch, boost mobile phones do not require legitimate subscriber information and can be purchased and used anonymously.

Agent Fitch further averred that he conducted a search of Brown's criminal history using the NCIC system. He learned that Brown was arrested by the Detroit Police in July 1996 for delivery/manufacture of felony dangerous drugs, but he was acquitted on the charges. Brown was arrested by the Detroit FBI in May 1999 for conspiracy to distribute marijuana, was convicted, and served time in federal prison.

To summarize the contents of his affidavit, Agent Fitch averred that Brown was an active participant in the attempted delivery of heroin on March 8, 2011, he had a felony drug trafficking history, he resided on Moross Road in Detroit, an MSP drug dog had alerted to the odor of narcotics in Brown's vehicle, and the vehicle was registered to Brown at his home on Moross Road. Agent Fitch further averred that there was probable cause to believe that the residence on Moross Road would contain the “fruits or other evidence of a conspiracy to distribute heroin” involving Brown, Middleton, Woods, and other co-conspirators, in violation of federal law. More specifically, Agent Fitch averred that there was probable cause to believe that the Moross Road residence would contain:

illegal drugs, drug ledgers, wrappers and drug packaging from heroin distribution that may have been divided up inside of the residence, documents identifying ownership or occupancy of the residence, documents of ownership of vehicles used by BROWN, documents and receipts for the purchase of cell phones used by BROWN, cellular telephones, large amounts of currency, money counters, financial instruments, firearms, scales, and drug related paraphernalia (further described in Attachment B ).

R. 15–1, Page ID 63. Attachment B described the items sought in greater detail.

Agent Fitch disclosed in the search warrant affidavit that he had been employed as a DEA Special Agent for approximately eight months, and based on his training and experience and that of other officers with whom he had discussed the case, drug traffickers tend to keep in their residences and vehicles the types of items for which the search warrant was requested. In paragraphs 2A. through 2J. of the affidavit, Agent Fitch described the manner and means by which drug traffickers generate, maintain, and conceal evidence related to drug trafficking. Attachment A to both the affidavit and the search warrant specifically described the residence on Moross Road that was the “Target Premises” to be searched. A federal magistrate judge issued the search warrant on March 30, 2011, twenty-two days after Brown's arrest.

DEA agents executed the search warrant at Brown's residence on March 31. On the floor...