United States v. Perry

• Decision Date: 19 July 2017
• Docket Number: No. 16-6285,16-6285
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Laquinton PERRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

864 F.3d 412

UNITED STATES of America, Plaintiff–Appellee,

v.Laquinton PERRY, Defendant–Appellant.

No. 16-6285

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 19, 2017

ON BRIEF: John Keith Perry, Jr., PERRY–GRIFFIN, P.C., Southaven, Mississippi, for Appellant. Lauren J. Delery, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: ROGERS, COOK, and STRANCH, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Laquinton Perry, having conditionally pled guilty to conspiring to possess narcotics with intent to distribute, appeals the preserved evidentiary issue of whether a search warrant for Perry's apartment was supported by probable cause. Perry contends that the activities indicating drug sales that were observed over the seven weeks before the issuance of the search warrant were stale evidence because the activities were not individually dated. The observations, according to Perry, may have been too old to indicate that drug evidence would probably be found in the apartment, while at the same time not concentrated or old enough to indicate continuous or entrenched criminal activity. Even without specific dates, however, the amount of suspicious activity observed within the seven weeks in connection with Perry's apartment was enough to support probable cause in this case.

At the probable cause hearing in Tennessee state court, Lieutenant Jason Drewery of the Fayette County Sheriff's Department swore in an affidavit as follows:

• Around October 10, 2014, he received the first of several complaints from concerned citizens living in an apartment complex that there were drug sales being conducted in that apartment complex and in a black Chevrolet Impala;

• That first complaint named Perry and his girlfriend as the drug sellers;

• Lt. Drewery knew Perry to be a drug dealer and to have several prior drug charges;

• From October 15, 2014, to December 3, 2014, Lt. Drewery intermittently surveilled the apartment complex;

• During the surveillance, Lt. Drewery observed heavy car and foot traffic into apartment four in the complex, and the visitors would go into the apartment and leave within one to two minutes;

• Lt. Drewery further observed Perry exchange money and packages, which appeared to contain marijuana, at a chain link face on the other side of which is a parking lot;

• Lt. Drewery observed an unknown black man exit apartment four, remove from his right front pocket a clear plastic bag, remove from that bag a separate package of marijuana, conduct an exchange with someone in a nearby Ford Mustang, and then return to apartment four;

• Lt. Drewery also observed Perry walk out of apartment four and into a Ford Explorer in the apartment parking lot, exchange a package, and return to apartment four;

• Lt. Drewery routinely saw Perry and his girlfriend use the black Chevrolet Impala and enter apartment four with keys; and

• Lt. Drewery confirmed that the utilities to apartment four are paid in, and that the black Chevrolet Impala is registered in, Perry's girlfriend's name.

Based on that affidavit, the Tennessee magistrate issued a search warrant on December 5, 2014, two days after Lt. Drewery's surveillance ended. Lt. Drewery executed the warrant on December 9.

Because Lt. Drewery's affidavit detailed multiple transactions involving Perry and his girlfriend that appeared to be drug transactions, and because those transactions corroborated the neighbors' complaints that Perry and his girlfriend were selling drugs, the Tennessee magistrate properly issued the search warrant under the Fourth Amendment.¹ Lt. Drewery's affidavit provided the Tennessee magistrate with the requisite substantial basis for finding a fair probability that illegal drugs would be found in apartment four and in the Chevrolet Impala.

Even though Lt. Drewery did not specify in his affidavit the dates on which he observed particular transactions, and while "stale information cannot be used in a probable cause determination," United States v. Frechette , 583 F.3d 374, 377 (6th Cir. 2009), Lt. Drewery's observations were not stale for two reasons. First, Lt. Drewery did state that his observations occurred between October 15 and December 3—two to fifty-one days before the probable-cause determination.

While "drugs are usually sold and consumed in a prompt fashion," id. at 378, the evidence of drug sales two to fifty-one days before is recent enough here to suggest that there may be further evidence of illegality in that place. In United States v. Greene , 250 F.3d 471, 480–81 (6th Cir. 2001), for instance, we held that 23–month–old evidence of drug sales was not stale when paired with information regarding a drug delivery in the prior month. Second, Lt. Drewery's observations of heavy car and foot traffic, repeated transactions, and one particular transaction in which an unknown man from apartment four took out a packet of marijuana from a bigger bag, all suggested that apartment four was home to an ongoing drug business of some size. We have recognized a "general principle that when ‘the affidavit properly recites facts indicating activity of a protracted and continuous nature, a...