United States v. Crawford

• Decision Date: 18 November 2019
• Docket Number: No. 18-6239,18-6239
• Citation: 943 F.3d 297
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard R. CRAWFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

943 F.3d 297

UNITED STATES of America, Plaintiff-Appellee,

v.Richard R. CRAWFORD, Defendant-Appellant.

No. 18-6239

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 18, 2019

ON BRIEF: Nathan A. Ray, BURDON & MERLITTI, Akron, Ohio, for Appellant. Charles P. Wisdom, Jr., James T. Chapman, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

Before: BATCHELDER, DONALD, and READLER, Circuit Judges

CHAD A. READLER, Circuit Judge.

Confidential informants play an important role in combatting drug trafficking. Reflecting as much, our cases reveal numerous examples of confidential informants providing critical information to support search warrants targeting drug crimes.

These same issues were at play in the investigation that resulted in Richard Crawford’s drug trafficking conviction. Almost all the evidence used to justify the search warrants that resulted in Crawford’s arrest was provided by a confidential informant. Challenging that practice, Crawford contends that the officers who sought the warrants did not verify sufficiently the informant’s reliability. Crawford is correct to emphasize the point—informants must be trustworthy and credible. But he is wrong in his conclusion. Here, the informant’s reliability was confirmed both by law enforcement agencies and through the affiant officer’s own research. Adding in the fact that the key information disclosed by the informant proved to be credible, there were many reasons to deem the informant reliable, thereby justifying the warrants. Accordingly, we AFFIRM the judgment below.

I. FACTS AND PROCEDURAL HISTORY

Officer Erik Nelson of the Blue Ash (Ohio) Police Department learned that Richard Crawford was dealing cocaine. That information, however, was not obtained first-hand. Instead, it came from a confidential informant, Jerry Heard, who was previously unknown to Nelson. To help establish his credibility as an informant, Heard identified Crawford from Crawford’s driver’s license photograph, and provided Nelson with Crawford’s telephone number.

Nelson took additional steps to verify Heard’s credibility as an informant. Nelson contacted two law enforcement officers who had experience working with Heard—Sergeant Dave Lewis of the Drug Abuse Reduction Task Force, and Agent Josh Schlie of the Hamilton County (Ohio) Heroin Coalition Task Force. Both officers confirmed Heard’s reliability, based upon their past interactions with him as an informant.

With these assurances, Nelson communicated with Heard a second time. After affirming that Crawford’s telephone number was unchanged, Heard told Nelson that Crawford had twenty ounces of cocaine he was going to sell. That prompted Nelson to review Crawford’s background.

Doing so revealed Crawford’s prior convictions for drug-trafficking offenses.

Heard continued to gather evidence incriminating to Crawford. Chief among that evidence, Crawford told Heard that Crawford could buy a kilogram of cocaine for $42,000 from a criminal organization in Columbus, and that Crawford would sell Heard an ounce of that cocaine for $1,500, should the sale with the Columbus organization come to pass. Heard relayed this information to Nelson. And he affirmed that Crawford’s telephone number was unchanged, this time by showing Nelson text messages between Crawford and Heard.

The First Search Warrant. Relying on this collection of information, Nelson obtained a warrant from an Ohio state court judge to electronically track Crawford’s cellphone—the first of three warrants officers would obtain to investigate Crawford. In his affidavit attached to the first warrant application, Nelson detailed the conversations he had with a confidential informant (Heard) as well as the steps he took to verify the informant’s reliability. But he did not name Heard in the affidavit.

The next day, Heard told Nelson that Crawford drove a silver 2003 BMW X5. Using that information as well as the license plate number provided by Heard, Nelson learned that the vehicle was registered to Crawford at a residence in Cincinnati, Ohio. Temporal cellphone data, however, placed Crawford near an apartment in Florence, Kentucky, leased to Crawford’s wife. So Nelson surveilled the apartment. He saw Crawford walk out of the apartment and drive away in the BMW previously identified by Heard. Heard later told Nelson that Crawford had again offered to sell him cocaine, this time for $1,400 an ounce.

The Second Search Warrant. Agent Chris Boyd of the Norfolk (Kentucky) Police Department assisted Nelson in investigating Crawford. Boyd sought a second warrant—one that would allow officers to place a tracking device on Crawford’s vehicle. In his affidavit, Boyd included both the information Nelson received from Heard as well as the information Nelson independently gathered. Relying on Boyd’s affidavit, a Kentucky state court judge issued a warrant authorizing officers to use the GPS device.

A few weeks later, Heard, with the aid of law enforcement, completed a controlled drug-buy from Crawford. During a phone call monitored by law enforcement, Heard and Crawford agreed to meet at a nearby gym. Officers surveilling Crawford saw him leave his apartment holding a small black duffle bag. Heard had previously informed officers that Crawford kept his cocaine inside a similar bag. After confirming that Heard was not in possession of any controlled substances or U.S. currency, officers provided Heard with $1,400 in cash, the serial numbers of which had been recorded by the officer. The officers also placed a listening device on Heard. Once Heard was inside the gym, however, the device did not function, meaning the police could not monitor Heard’s interaction with Crawford. But Heard filled in the gaps. According to Heard, he followed Crawford’s instructions and went to the locker room, where Crawford was storing cocaine in a bag. Heard put the money in that bag, took out the cocaine, and gave the bag back to Crawford. GPS tracking information revealed that Crawford drove back to his apartment following the locker room exchange.

The Third Search Warrant. Two days later, Boyd obtained a third search warrant regarding Crawford. This one was for Crawford’s apartment. In the supporting affidavit, Boyd included the facts used to obtain the prior warrants as well as the details of the controlled buy. With respect to the latter, the affidavit noted that the call participants "discussed meeting in order for Crawford to sell [Heard] cocaine." The affidavit also set forth the details of the buy itself.

Later that day, officers executed the warrant and searched Crawford’s apartment. During the search, officers found cocaine. They also found $3,705 in cash, which included $1,390 in tagged bills used in the controlled buy. Crawford was detained, Mirandized, and interviewed by officers at the scene. Crawford incriminated himself, admitting that he sold on consignment an ounce of cocaine to "Jerry," and that he had placed cocaine under his sink.

The Criminal Proceedings . On September 14, 2017, the grand jury returned a three-count indictment in which Crawford was charged as follows:

• Count One: Knowingly and Intentionally Distributing a Mixture or Substance Containing Cocaine, in violation of 21 U.S.C. § 841(a)(1).

• Count Two: Knowingly and Intentionally Possessing a Mixture or Substance Containing Cocaine With Intent to Distribute it, in violation of 21 U.S.C. § 841(a)(1).

• Count Three: Knowingly and Intentionally Possessing 28 Grams or More of a Mixture or Substance Containing Cocaine Base Crack With the Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1).

Crawford filed three motions with the district court—two to suppress evidence, and a third, a variation of the first two, which elaborated on Crawford’s argument that each warrant lacked probable cause. Through these motions, Crawford argued that none of the warrants should have issued. With respect to the warrant authorizing the search of his home, Crawford argued that Boyd, in the affidavit attached to the third warrant application, made a materially false statement regarding the content of the phone conversation during which the gym meeting was arranged.

Crawford also challenged the government’s reliance on his inculpatory statements made to officers. Citing Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Crawford argued that those statements should be suppressed, either because he was not Mirandized, or, if he was, because he did not voluntarily, knowingly, and intelligently waive his Miranda rights.

A magistrate judge took up Crawford’s arguments. In her report, the magistrate judge recommended that Crawford’s suppression motions be denied. The magistrate judge likewise recommended that Crawford should not receive a Franks hearing because he did not show that officers recklessly included false statements in the affidavit supporting the third warrant application, nor did he show that excising the challenged statements would change the result of the probable-cause analysis.

Crawford filed objections to the magistrate judge’s rulings (save for the ruling that Crawford voluntarily and knowingly waived his Miranda rights). Following a hearing, the district court adopted the magistrate judge’s Report and Recommendation and denied Crawford’s motions.

The case proceeded to trial. Much of the case turned on Nelson’s testimony. Nelson testified that he believed Heard to be a reliable informant, explaining how he verified Heard’s reliability. Nelson went on to detail the information he received from Heard as well as the actions he took upon receiving that information. At the close of evidence, the jury convicted Crawford of Count One. For Counts Two and Three, the jury found Crawford guilty of the lesser included offense of Possession of Cocaine and Cocaine Base.

The ensuing presentence report initially set Crawford’s offense level at 16. But because Crawford was deemed to be a career offender, his offense level...