United States v. Brown

• Citation: 828 F.3d 375
• Decision Date: 27 June 2016
• 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)

828 F.3d 375

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: June 27, 2016

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.^*

AMENDED OPINION

JANE B. 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. We conclude under the totality of the circumstances that the warrant was issued without probable cause and that the good-faith exception does not apply. Accordingly, we REVERSE the district court's denial of Brown's suppression motion, VACATE his convictions, and REMAND for a new trial. We do not reach Brown's challenges to the district court's evidentiary rulings.

I. BACKGROUND

A. The Search Warrant Affidavit

On March 30, 2011, DEA Agent Jeremy Fitch applied for a warrant to search Ricky Brown's residence on Moross Road in Detroit, Michigan. Agent Fitch's affidavit in support of the search warrant proceeded in four parts: standard recitations regarding drug crimes; facts related to the investigation of Marzell Middleton, an alleged heroin trafficker; facts related to the arrest of Middleton, Brown, and a third alleged heroin trafficker, Steven Patrick Woods; and additional facts pertaining to Brown specifically.

Agent Fitch's affidavit began with two pages of standard recitations regarding drug crimes. Agent Fitch disclosed 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 commonly generate, maintain, and conceal evidence related to drug trafficking.

The affidavit next addressed the investigation of Middleton. On March 8, 2011, a cooperating witness, identified as DEA1, provided information concerning the heroin trafficking activities of 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 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 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.

Agent Fitch's affidavit then addressed the arrests that occurred. Because the agents believed heroin was being transported to DEA1, they arranged for MSP troopers to execute simultaneous traffic stops of the Silverado and the Yukon. At approximately 9:00 p.m., Trooper Peterson conducted a probable cause traffic stop of the Silverado and identified the sole occupant as Steven Patrick Woods. Woods verbally consented to a search of the truck. The search revealed a black, plastic 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 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 in Monroe, Michigan. 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.

The affidavit then addressed the following additional facts pertaining to Brown. During their search of Middleton's residence, the police also searched a 2002 GMC Yukon registered to Brown, which was parked on the street in front of the residence.¹ MSP Trooper Unterbrink allowed a drug dog to walk around and climb into the vehicle. The dog alerted to the odor of narcotics inside Brown's vehicle, but the affidavit does not indicate that any drugs were actually recovered. Agents seized the 2002 Yukon under Michigan forfeiture laws.

On March 17, nine days after Brown was arrested, Agent Fitch obtained a warrant to search the contents of the four cell phones seized from the Yukon Denali. 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. He also learned that Brown was convicted of conspiracy to distribute marijuana in May 1999.

Agent Fitch's affidavit did not contain any additional facts pertaining to Brown's involvement in the alleged heroin conspiracy.

Agent Fitch's affidavit concluded by summarizing the facts presented in the affidavit. Based on these facts, he 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.” Attachment B described the items sought in greater detail. Attachment A to both the affidavit and the search warrant described the residence on Moross Road that was the “Target Premises” to be searched.

B. Execution of the Search Warrant, Motion to Suppress Evidence Obtained During the Search, and Trial

In the weeks that followed, the police obtained three search warrants: The first, a warrant to search Middleton's residence, was obtained just hours after the arrest; the second, a warrant to search the four cell phones recovered from the Yukon Denali, was obtained eight days later. Officers waited two more weeks to apply for the last, the above-described warrant to search Brown's residence, which was issued by a federal magistrate judge on March 30—22 days after Brown's arrest. Brown was released from custody on March 9, the day after his arrest, and DEA agents did not conduct any surveillance of him after he was released.

DEA agents executed the search warrant at Brown's residence on March 31. They found a nine-millimeter Smith and Wesson semiautomatic pistol, a loaded 12–gauge shotgun, and 60 grams of...